12 January

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Enforcement of Non-Compete and Non-Solicitation Provision

Non-compete provisions are not always fair. The same can probably be said about non-solicitation provisions. Typically, these provisions (referred to as restrictive covenants) are included in an employment agreement as a condition of employment. But, if there is a legitimate business interest for these provisions, and they are limited in scope, they are enforceable and relief, including injunctive relief, can be sought. Restrictive covenants in employment-related agreements, such as a non-compete and non-solicitation provision, are governed by Florida Statute s. 542.335. A party (e.g., employer) seeking a temporary injunction against another (e.g., employee) must demonstrate four elements: “(1) the likelihood...

05 January

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Absolute Immunity Protects Public Officials from Defamation

Posted by David Adelstein

in Trial Perspectives

Thinking about suing a public official for defamation? Think twice (or three or four times) before doing so. Public officials acting within the scope of their duties enjoy absolute immunity from statements they make. Stated differently, they are absolutely immune from a defamation lawsuit. In Quintero v. Diaz, 45 Fla. L. Weekly D51b (Fla. 3d DCA 2020), a former Director of Parks and Recreation for a city sued the Mayor of that City for defamation per se based on public defamatory statements contained in a termination letter. The parties stipulated that the Mayor was acting within the scope of his...

01 January

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The Duty of Care Element in a Negligence Action is a Question of Law

Posted by David Adelstein

in Trial Perspectives

There are four elements to proving a negligence (tort) claim: (1) a duty of care; (2) breach of that duty; (3) proximate causation; and (4) damages. Stated differently, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant's breach proximately caused damages to the plaintiff. Whether a duty of care exists is a question of law, meaning it is a question for the court. Cascante v. 50 State Security Service, Inc., 45 Fla. L. Weekly D8a (Fla. 3d DCA 2019). If there is no duty, there is no...

22 December

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Giving Rise to the Exception to Sovereign Immunity Against a Public Officer, Employee, or Agent

Posted by David Adelstein

in Trial Perspectives

In an important opinion stemming from the tragically horrific and deplorable mass shooting at Stoneman Douglas High School in February 2018--an incident that eternally weighs heavily in hearts --the school resource officer assigned to the school was sued under negligence theories. Peterson v. Pollack, 44 Fla. L. Weekly D2983b (Fla. 4th DCA 2019). The school resource officer moved to dismiss the lawsuit under sovereign immunity (i.e., that he was statutorily immune from such a lawsuit), and specifically, protection afforded to him under Florida Statute s. 768.28(9)(a). This subsection provides in pertinent part: No officer, employee, or agent of the state or of...

14 December

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Deficient Jury Instruction could Amount to Reversible Error

Posted by David Adelstein

in Appeal

In a recent case, Cooper v. Federated National Insurance Company, 44 Fla. L. Weekly D2961a (Fla. 5th DCA 2019), involving an insured suing their property insurer for bad faith, discussed in more detail here, a jury returned a verdict in favor of the insurer and against the insured. The insured appealed arguing that the trial court’s bad faith jury instruction amounted to reversible error. The trial court refused to present to the jury the jury instruction drafted by the insured and instead went with a standard form bad faith jury instruction. The appellate court agreed that the standard form jury...

28 November

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Fiduciary Duty Owed by Escrow Agent

Posted by David Adelstein

in Trial Perspectives

The use of escrow agreements and escrow agents is common. They are used in relationship to purchase-sale or real estate contracts. They are also used in relationship to certain settlement agreements. The escrow agent may be a third-party, such as a title company or financial institution, or it may be a law firm representing a party in the transaction or case. An escrow agent owes a fiduciary duty to the parties to the escrow transaction or agreement. Carter Development of Massachusetts, LLC v. Howard, 44 Fla. L. Weekly D2833a (Fla. 1st DCA 2019). “Any limitation on the use of money placed...

24 November

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Code Enforcement Board Appeal

Posted by David Adelstein

in Appeal, Standard of Review

If you have ever been in front of an enforcement board (such as a code enforcement board or have received a final order relating to a code enforcement issue), you may be familiar with your appellate rights under Florida Statute s. 162.11: An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the enforcement board. An appeal shall be filed within 30 days of the execution of...

17 November

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How to Factor a Postoffer Settlement into a Proposal for Settlement Analysis

Posted by David Adelstein

in Trial Perspectives

A plaintiff may serve a proposal for settlement (a/k/a offer of judgment) to create a mechanism to recover attorney's fees as the prevailing party. When it comes to proposals for settlement served by the plaintiff on the defendant, Florida Statute s. 768.79 provides: (b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred...

10 November

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Refuting Affirmative Defenses in Motion for Summary Judgment

Posted by David Adelstein

in Appeal, Burden of Proof

When a plaintiff moves for summary judgment, the plaintiff has the burden to negate affirmative defenses. Failing to address applicable affirmative defenses provides no value because the plaintiff has not done anything to refute the defense or establish its legal insufficiency. Summary judgment should not be granted if a plaintiff fails to address applicable affirmative defenses. “‘Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met.’” Hurchalla v. Homeowners...

03 November

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Authentication of Photograph at Trial

Posted by David Adelstein

in Burden of Proof, Evidence

A photograph needs to be authenticated at trial just like any other evidence. A recent decision impacts what can happen if a photograph at trial is NOT properly authenticated. In City of Miami v. Kho, 44 Fla.L.Weekly D2555c (Fla. 3d DCA 2019), a plaintiff slipped and fell on a sidewalk. The plaintiff claimed she slipped in a difference in elevation of the sidewalk which constituted a dangerous and defective condition that the City of Miami had knowledge of. The plaintiff could not prove the City had actual knowledge of the difference in elevation of the sidewalk at-issue, so she focused on...