19 November

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Mandatory Forum Selection Provisions

in Standard of Review, Trial Perspectives

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...

12 November

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Doctrine of Respondeat Superior

Posted by David Adelstein

in Trial Perspectives

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...

08 October

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

Posted by David Adelstein

in Appeal, Trial Perspectives

“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...

01 October

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Considerations: Independent Tort Doctrine and Claim Known as Equitable Accounting

Posted by David Adelstein

in Trial Perspectives

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...

28 September

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

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

17 September

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

Posted by David Adelstein

in Trial Perspectives

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...

10 September

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Bert Harris Act and Competing Motions for Summary Judgment

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

03 September

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Plaintiff MUST Confer Direct Benefit on Defendant to Prove Unjust Enrichment

Posted by David Adelstein

in Trial Perspectives

“The elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” CFLB Partnership, LLC v. Diamond Blue International, Inc., 47 Fla.L.Weekly D1812a (Fla. 3d DCA 2022). Regarding the first element “plaintiff has conferred benefit on the defendant,” the benefit conferred must be DIRECT and NOT an indirect benefit. Irrespective of whether or not I agree...

27 August

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You Cannot Intentionally Render Moot a Plaintiff’s Lawsuit

Posted by David Adelstein

in Trial Perspectives

After a lawsuit is filed, a defendant cannot intentionally try to moot a plaintiff's lawsuit in its favor. This sentiment is shown in the case of The Collins Condominium Association, Inc. v. Riveiro, Fla.L.Weekly D1741b (Fla. 3d DCA 2022). In this case, a condominium unit owner filed a lawsuit against his condominium association to stop the association from preventing him from installing a safety barrier around the perimeter of his outdoor balcony. In addition to filing a lawsuit, the unit owner also initiated administrative code enforcement proceedings against the association. The association, thereafter, installed alarm devices on the sliding glass doors...

13 August

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Apparent Authority of Agent to Bind Principal

Posted by David Adelstein

in Trial Perspectives

You may have heard the terms actual authority and apparent authority. This pertains to the authority of an agent to bind its principal. Focusing on apparent authority, a recent case provided a worthwhile definition: The doctrine of apparent agency stems from “the policy ‘that a principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party's reliance upon that appearance of authority as if it were actually conferred upon the agent.' ” To show apparent agency, a plaintiff must establish “(a) a...