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Suing Third-Party for Spoliation of Evidence

There is an independent spoliation of evidence cause of action against a third-party that accrues when that party “though not a party to the underlying action causing the plaintiff’s injuries or damages, loses, misplaces, or destroys evidence critical to that action.”  Shamrock-Shamrock, Inc. v. Remark, 44 Fla. L. Weekly D1093a (Fla. 5th DCA 2019).  This claim is a claim against a third-party – a party the plaintiff did not originally sue-- and known as a third-party spoliation of evidence claim.   If a party, such as a defendant, in the underlying action damages, loses, misplaces, or destroys evidence, this is known as first-party spoliation of...

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The Contractual Right to Arbitrate a Dispute Can be Waived

Arbitration is a form of dispute resolution.  Instead of litigating your case in court with a judge, you arbitrate your case with an arbitrator.  Arbitration is less formal and, ideally, the arbitrator will have more of a background relating to the issues driving the dispute.  The parties either agree to an arbitrator or an arbitrator is appointed through a selection process.  With everything, there are pros and cons to arbitration to be discussed in detail with your counsel.  There are many disputes I prefer arbitration and there are many disputes I do not. Arbitration is a creature of contract so if...

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Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)

What are the damages caused by the WRONGFUL recording of a lis pendens, and I am referring to a lis pendens NOT founded on a duly recorded instrument (e.g., not founded on a mortgage) or a statute (e.g., not founded on a construction or assessment lien)?  These are damages that should be accounted for in a lis pendens bond.  The recent opinion in LB Judgment Holdings, LLC v. Boschetti, 44 Fla.L.Weekly D693a (Fla. 3d DCA 2019), relying on Haisfeld v. ACP Florida Holdings, Inc., 629 So.2s 963 (Fla. 4thDCA 1993), explained: Haisfield looks back at losses that were actually suffered by a property...

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Affirming Summary Judgment when there are Competing Expert Affidavits

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” “Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” Because summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve...

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Proving Entitlement to a “Trade Secret”

A recent case, Managed Care of North America, Inc. v. Florida Healthy Kids Corp., D735a (Fla. 1st DCA 2019), discusses the standard in proving entitlement to a "trade secret," as defined by Florida law (below).   In this case, bidders submitted proposals to a public body in response to an Invitation to Negotiate. In responding to the proposal, one of the bidders marked certain pages confidential as a trade secret, which is not uncommon.   A losing bidder sought to obtain this information under Florida’s Public Record’s Act and the bidder maintaining the trade secret protection filed a motion for declaratory relief asking...

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Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease

“’In determining the merits of a motion to dismiss, the trial court must limit itself to the four corners of the complaint, including any attached or incorporated exhibits, assuming the allegations in the complaint to be true and construing all reasonable inferences therefrom in favor of the non-moving party.”Zurich Am. Ins. Co. v. Puccini, LLC, 2019 WL 454222, *1 (Fla. 3d DCA 2019) (citation omitted).   The standard of review associated with reviewing a trial court’s order granting a motion to dismiss with prejudice is de novo.  Id.   In Puccini, a commercial tenant operating a restaurant caused a fire. The fire...

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Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”).  A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount.  (See this article for more on proposals for settlement). For a plaintiff (party seeking affirmative relief), the plaintiff must obtain a judgment 25% greater than the proposal for settlement amount. When there are multiple defendants, the plaintiff needs to serve a proposal for settlement on each defendant.  In Cassedy, Jr. v. Wood,44 Fla.L.Weekly...

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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...

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

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...

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Disgorgement for WRONGDOING

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...

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