04 April

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Arbitrability of a Dispute – Does a Judge or Arbitrator Decide?

If you are involved in a dispute, the initial sentiment is to file a lawsuit and let a judge or jury decide the merits if it is not resolved in the interim. Another way to resolve a dispute is through binding arbitration. Frankly, with the uncertainty surrounding the judicial system right now, arbitration is not a bad way to go and likely the more efficient way to go, irrespective of the added administrative costs. The key with arbitration is that it is a creature of contract. This means there needs to be an arbitration provision in an agreement for the...

28 March

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A Misrepresentation is Not the Same as a Breach of Contract

Posted by David Adelstein

in Trial Perspectives

A claim based on a misrepresentation is NOT the same as a claim based on a breach of contract. Two notes to self one must consider before throwing a misrepresentation-type claim into the fray: First note to self: when pleading a claim based on a misrepresentation, whether fraudulent misrepresentation, fraudulent inducement, or negligent misrepresentation, it is imperative to plead those misrepresentations with specificity. See Fla. R. Civ. P. 1.120. Second note to self: a fraud claim is NOT a replacement to a breach of contract claim. “It is well settled that a party may not recover damages for both breach of contract...

16 March

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Consider Alternative Fee Arrangements

Posted by David Adelstein

in Trial Perspectives

With all of the uncertainty going on right now in the world, and there is a lot, it may be the time to consider alternative fee arrangements with your attorney. This can be any fee arrangement that is not hourly billing that is a creative way to meet your needs in light of cash flow constraints. Not every case merits an alternative fee arrangement, but many cases do. Perhaps it is time to explore the possibility of an alternative fee arrangement to see if one can be reached. There is nothing wrong with an innovative way to resolve your issues. Please...

10 March

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Owner Jointly and Severally Liable for Nondelegable Duty

Posted by David Adelstein

in Trial Perspectives

Previously, I discussed the case of Walters v. Beach Club Villas Condominium, Inc., 2020 WL 912943 (Fla. 3d DCA 2020) as it pertains to the Fabre defense. In this case, the plaintiff--a guest of a condominium unit owner--sued the association and the association’s dock contractor after she injured herself on an unfinished dock. The association hired a dock contractor to repair and replace a dock and the work was unfinished on the date the plaintiff injured herself. The plaintiff claimed the association was jointly and severally liable for the dock contractor’s portion of damages. The appellate court agreed because the association...

05 March

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Corporation Administratively Dissolved for Failing to File Annual Report can Still Prosecute Action

Posted by David Adelstein

in Trial Perspectives

There used to be an argument that if a corporation becomes administratively dissolved for failing to to file a routine annual report, the corporation cannot prosecute a lawsuit, or even defend itself in a lawsuit, until it becomes reinstated. Not so much anymore. The Second District Court of Appeal in Hock v. Triad Guaranty Ins. Corp., 45 Fla. L. Weekly D493g (Fla. 2d DCA 2020) held that a corporation that becomes administratively dissolved for failing to file an annual report may prosecute or defend an action “in order to wind up its business and affairs.” This means that any administratively dissolved...

01 March

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Application of the Non-Party Fabre Defendant

Posted by David Adelstein

in Trial Perspectives

In an earlier posting, I wrote about the defense concept known as the non-party Fabre defendant. This is an affirmative defense raised by a defendant in negligence scenarios to get a non-party on a jury verdict form so that the jury assigns a percentage of fault / liability for the plaintiff’s damages to this non-party. By assigning a percentage of fault to the non-party, the defendant’s liability for the plaintiff’s damages is reduced. By way of example, if the plaintiff has $100,000 in damages and sues the defendant for these damages, the defendant may claim that "X" should be responsible...

23 February

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Evidentiary Hearing when Lis Pendens NOT based on Duly Recorded Instrument

Posted by David Adelstein

in Appeal, Trial Perspectives

A lis pendens serves as a cloud against real property. A lis pendens will be recorded by a plaintiff when there is a dispute concerning affected real property. A party may record a lis pendens if it is foreclosing on a mortgage or lien or if the lawsuit simply pertains to the real property. If a lawsuit is NOT based on a duly recorded instrument such as a mortgage or a lien, a defendant should move to discharge the lis pendens and/or require the plaintiff to post a lis pendens bond to cover the defendant’s damages if the lis pendens...

15 February

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Mandatory or Permissive Forum Selection Provision

Posted by David Adelstein

in Trial Perspectives

Many contracts contain a venue provision also regarded as a forum selection provision – the jurisdiction where lawsuits are to take place. In analyzing these provisions, the initial consideration should always be whether the provision is mandatory or permissive. Mandatory forum selection clauses “require or unequivocally specify ...

02 February

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Limitation on Real Estate Broker’s Procuring Cause Doctrine

Posted by David Adelstein

in Trial Perspectives, Uncategorized

Here is the scenario? A commercial owner enters into an exclusive listing agreement with a real estate broker that gives the broker the exclusive right to sell or lease property within 1 year in exchange for 6% commission. The exclusive listing agreement provides that the broker is entitled to the commission “if the property was sold or leased within twelve months after termination of the agreement to any buyer to whom the property was submitted for sale during the continuance of the agreement.” This is the broker's protection period. The broker introduces the commercial owner to a couple. However, the couple does...

25 January

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The Declaration of Condominium “Says what It Says”

Posted by David Adelstein

in Trial Perspectives

There are lawsuits that don’t make sense. They just don’t. Granted, we do not know all of the ins-and-outs of the lawsuit, but the facts described in the case give an aura of irrationalness by one of the parties. Here is one – in what appears to be a condominium association taking an unreasonable position giving the unit owner no choice but to sue. In Cool Spaze, LLC v. Boca View Condominium Association, Inc., 45 Fla. L. Weekly D165a (Fla. 4th DCA 2020), a purchaser bought a unit in a condominium. He transferred the unit to a limited liability company he...