24 December

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Enforceability of a Himalaya Clause

A “Himalaya” clause. I just learned what this type of provision is called. A Himalaya clause attempts to extend limitation of liability provisions including forum selection provisions to persons other than the contracting party. Aquachile, Inc. v. Williams, 47 Fla. L. Weekly D30c (Fla. 4th DCA 2021). Regarding a Himalaya clause’s enforceability: Himalaya clauses are construed, according to general principles of contract interpretation, “by their terms and consistent with the intent of the parties.” The court must determine whether the plain language of the contract as a whole reflects an intent to extend limitations of liability to the party seeking protection. Any...

19 December

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Presuit Appraisal Requirement under Bert J. Harris Act

Posted by David Adelstein

in Trial Perspectives

The Bert J. Harris, Jr., Private Property Rights Protection Act (also known as the “Bert J. Harris Act”) “provides recovery for the loss of fair market value when the use of land is inordinately burdened by government action.” Blue Water Holdings, SRC, Inc. v. Santa Rosa County, FL, 46 Fla.L.Weekly D2622c (Fla. 1st DCA 2021); Fla. Stat. s. 70.001. A claimant cannot just rush to the courthouse and file a lawsuit. There is a presuit requirement and notice period that requires the claimant to funish an appraisal, as contained in Florida Statute s. 70.001(4)(a), which maintains: Not fewer than 90 days...

11 December

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Determining whether Lis Pendens Against Property is Appropriate – Fair Nexus

Posted by David Adelstein

in Trial Perspectives

When a lis pendens is recorded against property and the lawsuit is NOT founded on a duly recorded instrument and is NOT based on a construction lien, the other party will, and should, move to discharge the lis pendens. This will oftentimes require an evidentiary hearing where there court will determine whether there is a fair nexus to support the lis pendens, and if so, an amount associated with a lis pendens bond for the party that recorded the lis pendens to post. In determining whether a lis pendens against property is appropriate: The relevant question for the trial court, and the...

05 December

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Recovering Attorney’s Fees “Incurred” on Party’s Behalf

Posted by David Adelstein

in Trial Perspectives

Simply because a defendant does not pay his/her/its own attorney's fees does not mean the defendant is not entitled to recover attorney’s fees incurred on his/her/its behalf. That wouldn’t seem to make much sense since attorney's fees would have been incurred on the defendant’s behalf. Who actually writes the check to pay the attorney's fees is really of no moment, right? Therefore, do not bank your argument that another party will never be entitled to recover their fees because that other party did not personally pay for his/her/its own attorney's fees. This was the argument raised in Jain v. Buchanan...

28 November

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To Pierce Corporate Veil, there Needs to be Sufficient Findings of Improper Conduct

Posted by David Adelstein

in Standard of Review, Trial Perspectives

A trial court’s decision whether to pierce the corporate veil is reviewed under a de novo standard of appellate review because it presents a pure issue of law. Flooring Depot FTL, Inc. v. Wurtzebach, 2021 WL 5348903, *2 (Fla. 4th DCA 2021). The recent decision in Flooring Depot FTL demonstrating that piercing a corporate veil is not so easy, and really, far from it. In this case, homeowners did not receive approximate 1,912 square feet of purchased flooring. The homeowners sued the flooring company for not providing all of the flooring they paid for and claimed fraud. The homeowners attempted to...

21 November

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Timely Moving for Trial De Novo after Non-Binding Arbitration Award

Posted by David Adelstein

in Trial Perspectives

When involved in litigation, there are courts that will require you to go to non-binding arbitration as a method to resolve the dispute before proceeding to trial. While courts will always require you to mediate, some courts will take it a step further and require you to proceed to non-binding arbitration. See Florida Rule of Civil Procedure 1.820 and Florida Statute s. 44.103. And there are times parties will voluntarily agree to this process. I am not a fan of non-binding arbitration. I don’t find it to be a productive vehicle to resolve disputes compared to mediation (even multiple mediations). ...

14 November

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Attorney’s Fees do Not have to be Quantified in Proposal for Settlement

Posted by David Adelstein

in Trial Perspectives

Does a proposal for settlement have to specifically quantify the amount of attorney’s fees if the proposal wants to factor the other party’s attorney’s fees into the equation? According the recent opinion in Safepoint Insurance Co. v. Williams, 46 Fla. L. Weekly D2406b (Fla. 3d DCA 2021), the answer is No. The proposal can leave it up to the court (per a fee hearing) where the fees plus the judgment amount get factored in to determine whether that amount meets the proposal for settlement threshold for entitlement to attorney’s fees. In Safepoint Insurance Co., the defendant served a proposal for settlement...

31 October

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Dismissal of Complaint (Action under Florida’s Public Whistleblower Act) for Failure to State Cause of Action

Posted by David Adelstein

in Standard of Review, Trial Perspectives

A trial court’s dismissal of a complaint for failure to state a cause of action is reviewed under a de novo standard. Henley v. City of North Miami, 46 Fla.L.Weekly D2296c (Fla. 3d DCA 2021). An example of a trial court dismissing a complaint for the failure of the plaintiff to state a cause of action can be found in Henley where the trial court dismissed with prejudice the plaintiff’s claim under Florida’s Public Whistleblower Act per Florida Statute s. 112.3187. In this case, a public employee (plaintiff) alleged that he was terminated after sending emails and texts to the City...

17 October

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Duty Element of Negligence – Did Defendant’s Conduct Foreseeably Create Broader Zone of Risk

Posted by David Adelstein

in Trial Perspectives

In any negligence action, the first element a plaintiff needs to prove is that the defendant owed a duty of care to the plaintiff. Lee v. Harper, 46 Fla.L.Weekly D2251a (Fla. 1st DCA 2021). This duty element is a threshold legal question or a question of law. Id. “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’that poses a general threat of harm to others.” Id. (quotations and citations omitted). The issue is not whether the harm in question was foreseeable but the “defendant’s conduct must create the risk or control the...