Prove My Florida Case

Prove My Florida Case is my blog discussing Florida appellate, evidentiary, and trial issues and perspectives.  This blog focuses on issues that are important to proving YOUR case!

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.”   […]

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Copyright ©  [Considerations when Enforcing or Challenging Restrictive Covenant], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Copyright ©  [Arbitration Provision Involving Non-Florida Entities and a Non-Florida Transaction], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Copyright ©  [Apex Doctrine to Prevent Deposition of High Ranking Official in Corporate Context], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Author: David Adelstein

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 […]

The post Condominium Unit Owner Suing Condominium Unit Owner under Florida’s Condominium Act appeared first on .



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Copyright ©  [Condominium Unit Owner Suing Condominium Unit Owner under Florida's Condominium Act], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Copyright ©  [Standard for Petition for Writ of Certiorari], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Author: David Adelstein

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, […]

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Copyright ©  [Delay Tactics may Not Work to Avoid Dispositive Summary Judgment Ruling], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Copyright ©  [Damages Under Florida's Public Whistleblower Act], All Right Reserved. 2019.
Author: David Adelstein

Florida’s Whistleblower Act is designed to protect an employee who is wrongfully retaliated against (i.e., suspended, terminated, demoted, etc.) for objecting to or refusing to participate in his or her employer’s illegal practices.  Aery v. Wallace Lincoln-Mercury, LLC, 118 So.3d 904, 912 (Fla. 4thDCA 2013) (citation and quotation omitted). This is set forth in Florida Statute […]

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Copyright ©  [Damages Under Florida's Whistleblower Act], All Right Reserved. 2019.
Author: David Adelstein

What is a covenant running with the land?   A recent case explains the difference between a covenant running with the land and a personal covenant that does not run with the land: “Covenants are loosely defined as ‘promises in conveyances or other instruments pertaining to real estate’ . . . [and] are divided into two […]

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Copyright ©  [What is a Covenant Running with the Land?], All Right Reserved. 2019.
Author: David Adelstein

  Florida Statute s. 770.01 contains a pre-suit notice condition precedent requirement before a person can sue the news media for defamation.  It provides: Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting […]

The post Pre-Suit Notice Condition Precedent Requirement before Suing News Media for Defamation Not Extended to Books and Movies appeared first on .



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Copyright ©  [Pre-Suit Notice Condition Precedent Requirement before Suing News Media for Defamation Not Extended to Books and Movies], All Right Reserved. 2019.
Author: David Adelstein

Can I recover my attorney’s fees for litigating the reasonable amount of attorney’s fees I should be entitled to for prevailing in my lawsuit?  This concept is known as “fees on fees.”  It depends. Generally, [i]t is settled that in litigating over attorney’[s] fees, a litigant may claim fees where entitlement is the issue, but […]

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Copyright ©  [Attorney's Fees on Attorney's Fees], All Right Reserved. 2019.
Author: David Adelstein

I recently discussed the property insurance coverage dispute, American Integrity Insurance Company v. Estrada, 44 Fla. L. Weekly D1639a (Fla. 3d DCA 2019), which deals with an insured’s forfeiture of post-loss policy obligations in a property insurance policy.    Yet, in a different context, this case deals with a trial court striking a defendant’s (insurer) affirmative […]

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Copyright ©  [Striking an Affirmative Defense], All Right Reserved. 2019.
Author: David Adelstein

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019).   What about a party’s statement within a medical record (double hearsay – hearsay within hearsay)?  Well, that hearsay statement may be admissible if another exception permits its admissibility.  Once such […]

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Author: David Adelstein

In the premise liability context: [T]he obvious danger doctrine provides that a landowner “is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party….” However, this protection does not extend to situations where the landowner “should anticipate the harm […]

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Author: David Adelstein

I am not telling you anything you do not already know, but it is important to read and appreciate the documents you sign. Likewise, it is important to give due consideration to the documents you prepare or have prepared that you want another to sign.  Such documents are intended to have legal effect. By way […]

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Copyright ©  [Exculpatory Clauses MUST be Clear and Unequivocal], All Right Reserved. 2019.
Author: David Adelstein

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days.  In certain circumstances, such as when there is there is no basis to recover attorney’s fees, […]

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Copyright ©  [Two Proposal for Settlement Considerations], All Right Reserved. 2019.
Author: David Adelstein

General releases, unfortunately, are not absolute.  A recent ruling from the Third District Court of Appeal in Falsetto v. Liss, 44 Fla. L. Weekly D1340d (Fla. 3d DCA 2019) confirms this point, although, candidly, I have mixed feelings regarding this ruling.    In this case, the Court held that the term “unknown” in a general release […]

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Author: David Adelstein

A defamation claim can serve as a basis to amend a complaint to add punitive damages.   From prior articles (here or here) you know that asserting a basis for punitive damages is not made as of the date the lawsuit is filed.  Rather, a plaintiff must comply with the statutory, procedural requirements and move to amend […]

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Author: David Adelstein
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