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Presuit Appraisal Requirement under Bert J. Harris Act

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...

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Determining whether Lis Pendens Against Property is Appropriate – Fair Nexus

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...

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

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...

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

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...

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

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). ...

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

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...

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A Bad Deal does NOT Make It an Unlawful Deal

Florida Statute s. 542.335 (combined with Florida Statute s. 542.18) provides, in a nutshell, that restraints on trade or commerce are unlawful unless “they protect one or more legitimate business interest and are reasonable in geographic and temporal scope.” Capital Wealth Advisors, LLC v. Capital Wealth Advisors, Inc., 46 Fla. L. Weekly D2303a (Fla. 2d DCA 2021).  (Check out the statute to understand Florida law on restraints on trade or commerce.). But what is important is that s. 542.335 applies to restraints on trade or commerce and not restraints on other types of agreements such as commissions, as shown in...

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

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...

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

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...

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Trier of Fact Determines Weight of the Evidence

Just because there was conflicting evidence does not mean a new trial is warranted or the trier of fact got it wrong.  It just means the trier of fact weighed that conflicting evidence differently then you. This is permissible because it is up to the trier of fact to determine the weight to be given to the evidence.  Trials are filled with conflicting evidence and he said/she said testimony.  This is why there is a dispute.  The determination of who is right and who is wrong based on this conflicting evidence and the weight to be given to the evidence...

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