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! 

 

 

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 […]

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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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Copyright ©  [Hearsay within a Medical Record (Double Hearsay)], All Right Reserved. 2019.
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 despite the fact that […]

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Copyright ©  [Premise Liability and the Obvious Danger Doctrine], All Right Reserved. 2019.
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 […]

The post Exculpatory Clauses MUST be Clear and Unequivocal appeared first on .



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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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Copyright ©  [A General Release is Not Absolute], All Right Reserved. 2019.
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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Copyright ©  [Asserting Basis for Punitive Damages against Corporate Entity], All Right Reserved. 2019.
Author: David Adelstein

The recovery of attorney’s fees is a creature of contract or statute.  When a party prays for attorney’s fees in a lawsuit, that prayer for relief is based on a contractual basis or a statutory basis to attorney’s fees.  Sometimes, contracts include one-way prevailing party attorney’s fees.  In other words, the contract may provide that […]

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Copyright ©  [Mutuality of Obligation when it comes to Contractual Attorney's Fees], All Right Reserved. 2019.
Author: David Adelstein

  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 […]

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Copyright ©  [Suing Third-Party for Spoliation of Evidence], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Copyright ©  [The Contractual Right to Arbitrate a Dispute Can be Waived], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Copyright ©  [Damages Caused by Wrongful Recording of Lis Pendens (Not Founded on Instrument or Statute)], All Right Reserved. 2019.
Author: David Adelstein

  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 evidenceto determine if there is sufficient evidence at issue to justify a trial or formal hearing […]

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Copyright ©  [Affirming Summary Judgment when there are Competing Expert Affidavits], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Copyright ©  [Proving Entitlement to a "Trade Secret"], All Right Reserved. 2019.
Author: David Adelstein

“’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, […]

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Copyright ©  [Reversing Motion to Dismiss with Prejudice Based on Interpretation of Commercial Lease], All Right Reserved. 2019.
Author: David Adelstein

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 […]

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Copyright ©  [Considerations when Multiple Proposals for Settlement are Served on Separate Defendants], All Right Reserved. 2019.
Author: David Adelstein

  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 […]

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Copyright ©  [Duty to Maintain Property May Exist Even with Open and Obvious Dangerous Condition], All Right Reserved. 2019.
Author: David Adelstein

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 […]

The post Stormwater Runoff from Upper Landowner to Lower Landowner and “Reasonable Use” Rule appeared first on .



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Copyright ©  [Stormwater Runoff from Upper Landowner to Lower Landowner and "Reasonable Use" Rule], All Right Reserved. 2019.
Author: David Adelstein