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ProveMyFloridaCase.com > Trial Perspectives (Page 5)

Do Yourself a Favor: Get a Court Reporter at that Impactful Hearing

In a recent article, I discussed a trial court granting a defendant’s motion to discharge a lis pendens.  The plaintiff appealed by filing a petition for a writ of certiorari since the discharge of a lis pendens would constitute irreparable harm to support certiorari relief. However, at the hearing with the trial court on the motion to discharge the lis pendens, there was no court reporter.  As a result, the appellate court applied the presumption of correctness to the trial court’s ruling: "[T]he transcript is necessary for our review of the issue alleged, particularly when [the defendant] asserts that [the plaintiff's] entitlement...

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Real Estate Brokers are NOT Immune from Liability

Real estate brokers are NOT immune from liability when it comes to misrepresentations regarding the property they are selling.  A recent Florida appellate opinion supports this point. See Dziegielewski v. Scalero, 47 Fla.L.Weekly D2608a (Fla. 5th DCA 2022).  If you are a real estate broker, consider this, particularly if you are marketing a property with misrepresentative statements. In this case, a condominium unit was listed for sale.  The MLS listing for the property made a representation regarding garage spaces tied to the unit: “Not one or two, but three deeded garages come with this unit…” In actuality, the unit came with...

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Res Judicata and 4 Requirements that Must be Demonstrated

A recent case discusses the doctrine of res judicata after the trial court dismissed the plaintiff’s complaint with prejudice based on this doctrine. “The doctrine of res judicata provides that a judgment on the merits in an earlier suit bars a later suit on the same cause of action between the same parties or others in privity with those parties.”  Res judicata bars a subsequent lawsuit when the following identities exist in both the original lawsuit and the subsequent lawsuit: “(1) identity of the thing being sued for; (2) identity of the cause of action; (3) identity of the parties; and...

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Mandatory Forum Selection Provisions

When reviewing a contract, check to see if there is a forum selection provision.  This provision will dictate where a dispute shall or may be brought.  Forum selection provisions are construed as either mandatory forum selection provisions (the dispute has to be brought in this exclusive forum) or permissive forum selection provisions (the dispute may be brought in this forum, but other forums would work too).  Be mindful of forum selection provisions because they will come into play if a dispute unfolds. “Permissive [forum selection] clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and...

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Doctrine of Respondeat Superior

The doctrine of respondeat superior provides that “an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.”  “An employee's conduct is within the scope of his employment, where (1) the conduct is of the kind he was employed to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part...

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Petition for Writ of Mandamus – Directing Trial Court to Take Action

“To be entitled to mandamus relief, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty.”  “A ministerial duty is one where there is no room for the exercise of discretion, and the performance being required is directed by law.”  Further, “[a] writ of mandamus may issue to require a timely ruling on a matter pending before a lower tribunal.”  If an appellate court issues a writ of mandamus, it merely “directs the trial court to take action, but does not decide the merits.”  Griffin Windows and Doors, LLC v. Pomeroy, 47 Fla.L.Weekly D2013b (Fla. 3d...

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Considerations: Independent Tort Doctrine and Claim Known as Equitable Accounting

A recent Florida opinion discussed the importance and application of the independent tort doctrine.  Please check out my post on the independent tort doctrine here.  In a nutshell, as stated in the post, “Florida law does not allow a party damaged by a breach of contract to recover exactly the same contract damages via a tort claim.” Bedoyan v. Samra, 47 Fla.L.Weekly D1955a (Fla. 3d 2022). In addition to the independent tort doctrine, this case also discussed an affirmative claim known as equitable accounting.  As stated by the claim, it is an equitable claim. “To state a claim for an equitable...

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Waiver is a Voluntary Relinquishment of a Known Right that Must be Proven with a Clear Showing

The affirmative defense of waiver is a commonly pled affirmative defense.  A recent Florida appellate opinion, Smith v. Carlton, 2022 WL 4390651 (Fla. 5th DCA 2022), discusses waiver and its application under Florida law. The case focuses on an implied waiver, which is the most common form of a waiver defense or argument since it is premised on a party's conduct and actions.  (An express waiver is easy because there is an expressed intent to waive the requirement.) This case dealt with the sale of a horse farm. Prior to closing, the Buyers did a walk-through of the property and saw...

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Dismissal Without Prejudice does NOT Trigger Attorney’s Fees under Proposal for Settlements

When it comes to proposal for settlements from a defendant, there is both good news and bad news.  If a defendant serves a proposal for settlement, and the case is dismissed without prejudice, the good news is that the defendant is dismissed.  The bad news is that the dismissal without prejudice will NOT trigger the defendant’s right to obtain attorney’s fees pursuant to the proposal for settlement. In Annesser v. Innovative Service Technology Management Services Inc., 47 Fla.L.Weekly D1738a (Fla. 3d DCA 2022), a defendant served a proposal for settlement after being served with the complaint. The defendant moved to dismiss...

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Bert Harris Act and Competing Motions for Summary Judgment

In previous articles, I have discussed the Bert J. Harris, Jr. Private Property Rights Protection Act also known as the Bert Harris Act.  (See here and here.) A recent case, Brevard County, Florida v. Waters Mark Development Enterprises, LC, 47 Fla.L.Weekly D1863c (Fla. 5thDCA 2022), discusses the Bert Harris Act when there are competing motions for summary judgment. In this case, the plaintiff purchased land in Brevard County with plans to develop a residential subdivision.  After the plaintiff purchased the land, the County amended its comprehensive land use plan that lowered the developmental density. Whereas the comprehensive land use plan originally...

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