28 September

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Waiver is a Voluntary Relinquishment of a Known Right that Must be Proven with a Clear Showing

in Standard of Review, Trial Perspectives

The affirmative defense of waiver is a commonly pled affirmative defense. A recent Florida appellate opinion, Smith v. Carlton, 2022 WL 4390651 (Fla. 5th DCA 2022), discusses waiver and its application under Florida law. The case focuses on an implied waiver, which is the most common form of a waiver defense or argument since it is premised on a party's conduct and actions. (An express waiver is easy because there is an expressed intent to waive the requirement.) This case dealt with the sale of a horse farm. Prior to closing, the Buyers did a walk-through of the property and saw...

17 September

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Dismissal Without Prejudice does NOT Trigger Attorney’s Fees under Proposal for Settlements

Posted by David Adelstein

in Trial Perspectives

When it comes to proposal for settlements from a defendant, there is both good news and bad news. If a defendant serves a proposal for settlement, and the case is dismissed without prejudice, the good news is that the defendant is dismissed. The bad news is that the dismissal without prejudice will NOT trigger the defendant’s right to obtain attorney’s fees pursuant to the proposal for settlement. In Annesser v. Innovative Service Technology Management Services Inc., 47 Fla.L.Weekly D1738a (Fla. 3d DCA 2022), a defendant served a proposal for settlement after being served with the complaint. The defendant moved to dismiss...

10 September

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Bert Harris Act and Competing Motions for Summary Judgment

Posted by David Adelstein

in Standard of Review, Trial Perspectives

In previous articles, I have discussed the Bert J. Harris, Jr. Private Property Rights Protection Act also known as the Bert Harris Act. (See here and here.) A recent case, Brevard County, Florida v. Waters Mark Development Enterprises, LC, 47 Fla.L.Weekly D1863c (Fla. 5thDCA 2022), discusses the Bert Harris Act when there are competing motions for summary judgment. In this case, the plaintiff purchased land in Brevard County with plans to develop a residential subdivision. After the plaintiff purchased the land, the County amended its comprehensive land use plan that lowered the developmental density. Whereas the comprehensive land use plan originally...

03 September

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Plaintiff MUST Confer Direct Benefit on Defendant to Prove Unjust Enrichment

Posted by David Adelstein

in Trial Perspectives

“The elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” CFLB Partnership, LLC v. Diamond Blue International, Inc., 47 Fla.L.Weekly D1812a (Fla. 3d DCA 2022). Regarding the first element “plaintiff has conferred benefit on the defendant,” the benefit conferred must be DIRECT and NOT an indirect benefit. Irrespective of whether or not I agree...

27 August

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You Cannot Intentionally Render Moot a Plaintiff’s Lawsuit

Posted by David Adelstein

in Trial Perspectives

After a lawsuit is filed, a defendant cannot intentionally try to moot a plaintiff's lawsuit in its favor. This sentiment is shown in the case of The Collins Condominium Association, Inc. v. Riveiro, Fla.L.Weekly D1741b (Fla. 3d DCA 2022). In this case, a condominium unit owner filed a lawsuit against his condominium association to stop the association from preventing him from installing a safety barrier around the perimeter of his outdoor balcony. In addition to filing a lawsuit, the unit owner also initiated administrative code enforcement proceedings against the association. The association, thereafter, installed alarm devices on the sliding glass doors...

13 August

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Apparent Authority of Agent to Bind Principal

Posted by David Adelstein

in Trial Perspectives

You may have heard the terms actual authority and apparent authority. This pertains to the authority of an agent to bind its principal. Focusing on apparent authority, a recent case provided a worthwhile definition: The doctrine of apparent agency stems from “the policy ‘that a principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party's reliance upon that appearance of authority as if it were actually conferred upon the agent.' ” To show apparent agency, a plaintiff must establish “(a) a...

24 July

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Unclean Hands Affirmative Defense

Posted by David Adelstein

in Trial Perspectives

In Florida, and many jurisdictions, there is an equitable affirmative defense known as unclean hands. Most of the time, it is pled as an affirmative defense incorrectly. It is asserted, but not really a defense a party can ever prove. It is a hard defense to prevail on because it is akin to fraud: Unclean hands is an equitable defense much like fraud. The defense applies to bar an equitable claim no matter the claim's merits when “the plaintiff has engaged in some manner of unscrupulous conduct, overreaching, or trickery that would be ‘condemned by honest and reasonable men.' ” U.S. Bank...

10 July

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Lost Profits – Not so Easy to Prove

Posted by David Adelstein

in Trial Perspectives

One of the hardest types of damages to prove is lost profit damages. People don’t always believe this, or want to hear this, but it is a hard damage to prove because another party will always combat such damages by claiming they are speculative. Even if you get such damages awarded at the trial level, there is risk that these damages will get reversed on appeal. Typically, “a business seeking to recover lost profits must prove that 1) the defendant’s action caused the damage and 2) there is some standard by which the amount of damages must be adequately determined.” Bass...

03 July

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Serving the Civil Remedy Notice (CRN) to Perfect a First-Party Bad Faith Insurance Claim

Posted by David Adelstein

in Trial Perspectives

In order for an insured under a first-party insurance policy (e.g., property insurance policy) to have a bad faith claim against their insurer, they must first file a Civil Remedy Notice (known as a “CRN”) per Florida statute s. 624.155 identifying the alleged bad faith violation. The CRN gives the insurer sixty days to cure the alleged bad faith violation. In a recent opinion, Apex Roofing and Restoration, LLC A/A/O Derrick v. State Farm Florida Ins. Co., 47 Fla.L.Weekly D1423c (Fla. 5th DCA 2022), the Court looked at two things. First, whether the sixty-day cure period in s. 624.155 is tolled...

26 June

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Breach of Express Contract is Exception to Sovereign Immunity

Posted by David Adelstein

in Trial Perspectives

Public entities are entitled to sovereign immunity in certain situations. That situation does not exist when the public entity enters into a contract. “Florida law recognizes a limited waiver of sovereign immunity where the municipality breaches an express written contract.” City of Miami v. Cruz, 47 Fla.L.Weekly D1353b (Fla. 3d DCA 2022). A public body cannot hide behind sovereign immunity to escape obligations under a written contract. By way of example, in Cruz, the plaintiff sued the City for breach of a settlement agreement. The City moved to dismiss based on sovereign immunity claiming the plaintiff’s action was barred. The City’s...