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Improperly Moving to Set Aside the Verdict

Florida Rule of Civil Procedure 1.480 governs motions for directed verdict and motions to set aside the verdict and to enter judgment pursuant to the directed verdict: (a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall...

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Considerations when Enforcing or Challenging Restrictive Covenant

A restrictive covenant that runs with the land places restrictions on the use of real property.  As a result, “restrictive covenants must be strictly construed in favor of the free and unrestricted use of real property” and, with respect to any ambiguity in the covenant, “must be construed against the party seeking to enforce it.”   Beach Towing Services, Inc. v. Sunset Land Associates, LLC, 44 Fla.L.Weekly D2195a (Fla. 3d DCA 2019).  These are important things to remember when enforcing or challenging a restrictive covenant. For instance, in Beach Towing Services, the plaintiff purchased property that was subject to a restrictive covenant...

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Arbitration Provision Involving Non-Florida Entities and a Non-Florida Transaction

It is permissible for non-Florida persons/entities to agree to arbitration in Florida.  Such arbitration agreement will be enforceable and Florida courts can enforce the arbitration agreement even if the underlying transaction is conducted outside of Florida. Section 682.18(1) of Florida’s Arbitration Code provides in material part: The making of an agreement or provision for arbitration subject to this law and providing for arbitration in this state shall, made within or outside this state, confer jurisdiction on the court to enforce the agreement or provision under this law, to enter judgment on an award duly rendered in an arbitration thereunder and to vacate, modify...

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Apex Doctrine to Prevent Deposition of High Ranking Official in Corporate Context

There is a doctrine referred to as the Apex doctrine to prevent the deposition of a high ranking official.  The Apex doctrine stands for the proposition that “[an] agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources.”  Suzuki Motor Corp. v. Winckler, 44 Fla.L.Weekly D2219a (Fla. 1stDCA 2019) (citation omitted).   Stated another way: “[A] party seeking to depose a . . . high-ranking governmental official must demonstrate the personal involvement of the official in a material...

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Comply with the Dispute Resolution Provision in Your Contract

Many contracts have dispute resolution provisions.  If not, they should.  It is important that dispute resolution provisions are reviewed and complied with PRIOR TO the initiation of a dispute.  Failure to comply could result in you being “S*** Out of Luck” with your claim, as exemplified in the recent opinion in Guan v. Ellingsworth Residential Community Association, Inc., 44 Fla. L. Weekly D2155a (Fla. 5thDCA 2019).  This case involved a dispute between a homeowner and her homeowner’s association.  There was a Declaration of Covenants recorded in the public records.  The Declaration, no different than any Declaration, created a contract between a...

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Condominium Unit Owner Suing Condominium Unit Owner under Florida’s Condominium Act

If you are a condominium unit owner, you might find this to be of interest.   If you are not a condominium unit owner, you likely will not.  In a recent case, an issue was whether a particular provision of the Florida Condominium Act provided a private cause of action between unit owners.  Stated differently, the issue was whether one owner could sue another owner for a statutory violation.  The appellate court held it did not: “Nothing in the language of this [particular] statute or in the statutory structure indicates that a private cause of action between unit owners was contemplated by...

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Standard for Petition for Writ of Certiorari

To invoke an appellate court's certiorari jurisdiction, [t]he petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on post-judgment appeal. State Farm Florida Ins. Co. v. Sanders, 44 Fla.L.Weekly D1901a (Fla. 3d DCA 2019) quoting Rousso v. Hannon, 146 So.3d 66, 69 (Fla. 3d DCA 2014) (internal quotations omitted).  This is the standard for a petition for writ of certiorari. An example of an appellate court granting a petition for writ of certiorari and quashing a trial court’s...

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Supplemental Property Insurance Claim

In a recent property insurance dispute, Chavez v. Tower Hill Insurance Company, 44 Fla. L. Weekly D2019b (Fla. 3d DCA 2019), an insured previously sued his property insurer and lost.  The insured then filed a new suit against his property insurer for the same damages.  The trial court, affirmed by the appellate court, held that res judicata applied to bar the insured’s new lawsuit against the insurer.  The insured tried to argue that res judicata should not apply because the new lawsuit was predicated on a supplemental claim, as there is law that res judicata does not apply if the...

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Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling

Delay tactics do not always work to avoid a dispositive summary judgment ruling, particularly when the tactics have no justifiable basis.  And, frankly, delay tactics should not work as an intentional means to delay the inevitable.  This was discovered by a commercial condominium owner in Weisser Realty Group, Inc. v. Porto Vita Property Owners Association, Inc., 44 Fla. L. Weekly D1094a (Fla. 3d DCA 2019), where the trial court granted a foreclosure summary judgment against it.   In this case, a commercial condominium owner purchased a condominium unit in a condominium that had residential units and select commercial units. Residential units...

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Damages Under Florida’s Public Whistleblower Act

In a prior article, I discussed damages recoverable under Florida’s Whistleblower Act, which concerns employees working for private employers.  An employer cannot retaliate against an employee for reporting or objecting to violations of laws, rules, and regulations. But, Florida also has a Whistleblower Act concerning employees or independent contractors working for public employers.  This is embodied in Florida Statute s. 112.3187 (also known as Florida’s Public Whistleblower Act) and designed to prevent the retaliation against such persons that report to an appropriate agency violations of law or any person that discloses information to an appropriate agency regarding the gross waste of...

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