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Breach of Express Contract is Exception to Sovereign Immunity

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...

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Moving for and Challenging a Protective Order under the Apex Doctrine

Florida codified the Apex doctrine in 2021.  Florida Rule of Civil Procedure 1.280(h), codifying the Apex doctrine, provides: A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking...

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Purchase-and-Sale Contract: Your Right to Modify Them

Real estate purchase-and-sale contracts govern the buyer’s and seller’s rights in the transaction.  Although standard form contracts are utilized, this does not mean modifications cannot be made.  In numerous cases, modifications should be made to clarify the intent of the parties to the transaction.   In a recent case, Inlet Colony, LLC v. Martindale, 47 Fla.L.Weekly D1175a (Fla. 4th DCA 2022), the purchase-and-sale contract had a drop dead closing date. There was an addendum to the contract with specific closing terms that stated: Seller and Buyer make the following terms and conditions part of the Contract; Closing will occur [the] later of...

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Premise Liability and Duty Owed to Business Invitees

A premise liability action is a negligence action. As with any negligence action, a focus is on the duty the defendant (the landowner or possessor of real property) owes to the plaintiff.  In a premise liability action, a focus is on the duty an owner or possessor owes to an invitee. An owner owes two duties to a business invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be...

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Recovering Attorney’s Fees in Litigating the Amount of Attorney’s Fees

The expression “fees for fees” or “fees on fees” generally refers to a situation where a party is awarded their attorney’s fees for litigating the amount of attorney’s to be awarded.  Typically, litigating the amount of fees to be awarded to a prevailing party is not recoverable. Nazarova v. Nayfeld, 47 Fla. L. Weekly D1089B (Fla. 3d DCA 2022). However, such fees can be awarded if the contract in which attorney’s fees is based includes applicable language or  is "broad enough to encompass fees incurred in litigating the amount of fees."  Id. (internal quotation and citation omitted). In Nazarova, the fee provision...

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Business Interruption due to COVID-19 NOT Covered under Commercial Property Insurance Policy

Florida has come out with an appellate opinion dealing with business interruption and COVID-19 under a commercial property insurance policy.  In this matter, a restaurant/bar filed suit against its commercial property insurance carrier seeking declaratory relief that the policy covered its “business income losses it suffered when its suspended its operations during the COVID-19 pandemic.”  Commodore d/b/a Greenstreet Café, Inc. v. Certain Underwriters at Lloyd’s London, 47 Fla.L.Weekly D1044a (Fla. 3d DCA 2022). The commercial property insurance policy at-issue did not contain a virus exclusion. During the COVID-19 pandemic, Miami issued emergency measures impacting the occupancy of businesses.  Such measures ordered certain...

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Foreseeability and the Duty Element of a Negligence Claim

Negligence causes of action are common causes of action in lawsuits.  Therefore, it is important know what a plaintiff needs to do to both plead and prove a negligence claim.   This includes the duty element of a negligence claim -- without the duty element, there is no negligence claim, and certainly no claim going to a jury to decide. “To state a cause of action for negligence, a plaintiff must allege: (1) the existence of a legal duty owed by the defendant to others, (2) breach of that duty by the defendant, (3) injury to the plaintiff proximately caused by...

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Post-Judgment Receiver Appointed to Collect on Behalf of Judgment Creditor

When a plaintiff recovers a monetary judgment against a defendant, the plaintiff becomes a judgment creditor.  In order to collect on the judgment, it’s not uncommon for the judgment creditor to initiate proceedings supplementay, which is a statutory procedure.  See Fla. Stat. s. 56.29.  “Proceedings supplementary provide a judgment creditor with useful remedies to satisfy a judgment.” Williams v. Leali, 47 Fla. L. Weekly D949a (Fla. DCA 2022). One collection mechanism, as discussed in Williams, is for the judgment creditor to get a post-judgment receiver appointed with the duty to obtain funds to satisfy the judgment.  See Fla. Stat. s. 56.10.  ...

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Reminder: Not Every Breach is a Material Breach of Contract

This is a short reminder.  Not every breach of contract is a material breach.  That's right - a breach can be a minor or technical breach that does not actually go to the essence of the contract.  If it does not go to the essence of the contract, then how can it be a material breach?  It cannot.  This is important because you do not want to make strategic decisions on a breach that is not regarded a material breach. “To constitute a vital or material breach, a party's nonperformance must ‘go to the essence of the contract.’  A party's ‘failure...

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Adding a Non-Party Fabre Defendant to the Verdict Form

In a recent premises liability action, the defendant appealed claiming the trial court failed to include a nonparty Fabre defendant on the verdict form.  The appellate court disagreed and affirmed the trial court on this issue. It has become a common occurrence for parties to want others on the jury verdict form to give the jury an opportunity to allocate fault to a party other than them.  And why not?  However, this is not really how it works.  A party cannot just argue that another party should be added to the verdict form just for the sake of it.  That would...

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