10 February

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Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition

Even with an open and obvious dangerous condition, there may still exist a duty to maintain the property and repair that same condition. In Middleton v. Don Asher & Associates, Inc., 44 Fla.L.Weekly D301d (Fla. 5th DCA 2019), the plaintiff was a unit owner in a condominium for 15 years. She slipped and fell while she was walking on the condominium’s premises. In particular, she slipped and fell on a sidewalk that contained uneven joints between two concrete segments. She sued her condominium association and property manager for negligence in a premise liability action. The sidewalk was apparently a common element required...

04 February

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Stormwater Runoff from Upper Landowner to Lower Landowner and “Reasonable Use” Rule

Posted by David Adelstein

in Trial Perspectives

The recent decision in Coachwood Colony MGP, LLC v. Kironi, LLC, 44 Fla.L.Weekly D340a (Fla. 5thDCA 2019) discusses the burden an upper landowner owes to a neighboring lower landowner when it comes to stormwater runoff / drainage. The upper landowner is at a higher elevation than the lower landowner so the issue becomes the flow of stormwater from the upper landowner’s higher elevation property to the neighboring lower elevation property. The flow of stormwater can result in washout, flooding, and loss of use and enjoyment to the lower elevation property, which is where the issue lies. The Florida Supreme Court discussed...

27 January

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Disgorgement for WRONGDOING

Posted by David Adelstein

in Trial Perspectives

What is disgorgement and what are the proper measure of damages when seeking disgorgement? If you have ever asked yourself these questions, the case of Bailey v. St. Louis, 44 Fla.L.Weekly D128a (Fla. 2d DCA 2018), answers both in a bitter dispute with two appeals dealing with awarded damages associated with claims for breach of fiduciary duty, defamation, conspiracy, slander per se, tortious interference, and violation of Florida’s Deceptive and Unfair Trade Practices Act. You name it, this case seemed to include it! Applicable here, however, is the damages associated with disgorgement which is designed to prevent a wrongdoer from...

20 January

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Disability Discrimination: Synopsis

Posted by David Adelstein

in Trial Perspectives

When it comes to disability discrimination, there are two key federal statutes. The first is the American with Disabilities Act (ADA) and the second is the Rehabilitation Act. Both statutes are governed under analogous standards as per online scooter reviews and are designed at prohibiting discrimination against qualified individuals with disabilities. There are numerous federal cases discussing both the ADA and the Rehabilitation Act and their application to a given factual scenario. For purposes here, this synopsis will merely highlight key components to a disability discrimination claim. It is important that a person that believes they have been discriminated against...

22 December

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Arbitration Clause – Narrow or Broad

Posted by David Adelstein

in Trial Perspectives, Uncategorized

Arbitration, as a method of dispute resolution, is a creature of contract. If you prefer to arbitrate disputes as opposed to litigating disputes in court, then you want a properly drafted arbitration provision in your contract. If you want all disputes arising out of or relating to your contract to be arbitrated, then you want this specified in your contractual arbitration provision. Conversely, if you want certain disputes not to be arbitrated or carved-out from arbitration, you want to clarify this in the arbitration provision. The more clarity, the better, as it will avoid an issue down the road as to whether the dispute...

03 December

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Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment

Posted by David Adelstein

in Trial Perspectives

Certain employment contracts will contain non-solicitation clauses. Such clauses may be important if a company hires an employee for a specific project or purpose. Language may include that the employee agrees that she/he will NOT solicit employment with any other company associated with the project or purpose during the employment or a certain post-employment period. For example, in Convergent Technologies, Inc. v. Stone, 43 Fla. L. Weekly D2521a (Fla. 1stDCA 2018), a company that provides cyber-security training for the US government entered into a subcontract to provide instructors for a program for Navy personnel. The company hired employees to serve as...

02 December

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Proposals for Settlement ONLY Apply to Claims for Monetary Relief

Posted by David Adelstein

in Trial Perspectives

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument. In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered. But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for...

22 November

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Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act

Posted by David Adelstein

in Trial Perspectives

In a prior article, I discussed the Bert J. Harris, Jr., Private Property Rights Protection Act. This Act is designed to provide statutory protection to a property owner when governmental action inordinately burdens (directly restricts or limits) the owner's use of their property without the governmental action amounting to a taking. Vale v. Palm Beach County, 43 Fla. L. Weekly D2591a (Fla. 4th DCA 2018). This Act, however, does NOT apply if governmental action does not inordinately burden YOUR property, i.e., property you own. For example, in Vale, a group of homeowners purchased property in a planned used development next...

17 November

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Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

Posted by David Adelstein

in Appeal, Trial Perspectives

During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff's case-in-chief. The defendant argued the plaintiff had no standing. The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff. The defendant appealed. On appeal, the appellate court reviews on a de novo standard of appellate review a trial court's ruling on a motion for involuntary dismissal. In doing so, the trial court reversed the trial judge with directions to enter judgment in favor of the defendant. Why? Well, this case involved a member of a limited liability company (LLC), the...

03 November

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If You File a Frivolous Motion or Pleading: BEWARE

Posted by David Adelstein

in Trial Perspectives

If you file a frivolous motion or pleading: BEWARE. Appellate courts are taking seriously frivolous filings. Frankly, they should! In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature's Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial. The defendant than filed a motion for prevailing party attorney's fees. However, the defendant NEVER pled an actual entitlement to attorney's fees. The plaintiff served a Florida Statute s. 57.105 motion that is designed to notify a party of a frivolous filing and give them a safe-harbor time...