Contract documents must be interpreted reasonably.

See Danforth Orthopedic Brace & Limb v. Fla. Health Care Plan, 750 So. 2d 774, 776 (Fla. Dist. Ct. App.5th Dist. 2000, stating “A reasonable interpretation of a contract is preferred to an unreasonable one. And in the belief that the parties intended their agreement to be valid, a contract ought not be readily interpreted as ineffective.”) (citations omitted); see also Paddock v. Bay Concrete Indus., Inc., 154 So. 2d 313 (Fla. 2d DCA 1963) (“All the various provisions of a contract must be so construed, if it can be reasonably done, as to give effect to each. Looking to the other provisions of a contract and to its general scope, if one construction would lead to an absurd conclusion, such interpretation must be abandoned and that adopted which will be more consistent with reason and probability.”)

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Despite this general proposition, when a person slips and falls on a transitory foreign substance, the rule has developed that the injured person must prove that the premises owner had actual knowledge or constructive knowledge of the dangerous condition “in that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.” Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769, 771 (Fla. 3d DCA 1998).

Constructive knowledge may be established by circumstantial evidence showing that: (1) “the dangerous condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of the condition;” or (2) “the condition occurred with regularity and was therefore foreseeable.” Brooks v. Phillip Watts Enter., Inc., 560 So.2d 339, 341 (Fla. 1st DCA 1990). In the latter category, evidence of recurring or ongoing problems that could have resulted from operational negligence or negligent maintenance becomes relevant to the issue of foreseeability of a dangerous condition.

All of these factors lead us to conclude that premises liability cases involving transitory foreign substances are appropriate cases for shifting the burden to the premises owner or operator to establish that it exercised reasonable care under the circumstances, eliminating the specific requirement that the customer establish that the store had constructive knowledge of its existence in order for the case to be presented to the jury. Presumptions, which are created either judicially or legislatively and arise from considerations of fairness, public policy, and probability, are used to allocate the burden of proof. See generally Charles W. Ehrhardt, Florida Evidence §301.1 (2000 ed.) Accordingly, we adopt the following holding to be applied to slip-and- fall cases in business premises involving transitory foreign substances. We hold that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition.

Thus, once the plaintiff establishes that he or she fell as a result of a transitory foreign substance, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of evidence that it exercised reasonable care in the maintenance of the premises under the circumstances. The circumstances could include the nature of the specific hazard and the nature of the defendant’s business. Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 331 (Fla. 2001). See also Melkonian v. Broward County Bd. of County Com’rs., 844 So.2d 785, 787 (Fla. 4th DCA 2003). However, see Florida Statutes §768.0710 (2005) (Burden of proof in claims of negligence involving transitory foreign objects or substances against persons or entities in possession or control of business premises.).

Transatory Foreign Substances, Defined: By “transitory foreign substance,” we refer generally to any liquid or solid substance, item or object located where it does not belong. See Black’s Law Dictionary 660 (7th ed. 1999) (A foreign substance is “[a] substance found . . . where it is not supposed to be found”). Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 317 (Fla. 2001).

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Florida is among the minority of jurisdictions that have retained the impact rule in negligence cases. That rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact. With few exceptions, Florida cases apparently require that in addition to impact or some substitute therefor, in order to establish the tort of negligent infliction of emotional distress, the plaintiff must prove some kind of physical injury to recover damages for the emotional distress, whether the physical injury is a result of the impact or a result of the emotional distress which in turn was caused by the impact. Reiser v. Wachovia Corp., 935 So.2d 1236 (Fla. 5th DCA 2006)(“[F]lorida does not recognize a cause of action for negligent infliction of emotional distress, at least in the absence of a physical impact or injury.”).

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Florida’s pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort. Continental Baking Co., 634 So.2d at 244.

Furthermore, at the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988).” E.g., Horowitz v. Lasky, 855 So.2d 169, 172 (Fla. 5th DCA 2003).“In addition to the jurisdictional statement and the relief sought, the complaint must contain a plain statement of ultimate facts establishing entitlement to relief.” E.g., Pratus v. City of Naples, 807 So. 2d 795, 796 (Fla. 2d DCA 2002).

“Clearly mere legal conclusions inserted in a complaint are insufficient to state a cause of action unless substantiated by allegations of ultimate fact. A complaint must sufficiently allege ultimate facts which, if established by competent evidence, would support a decree granting the relief sought.” E.g., Doyle v. Flex, 210 So.2d 493, 494-95 (Fla. 4th DCA 1968). However, “the Florida Rules of Civil Procedure permit inconsistency in pleadings as to either statements of facts or legal theories adopted.” E.g., Booker v. Sarasota, Inc., 707 So.2d 886, 888 (Fla. 1st DCA 1998)(citation omitted).

Andrew Douglas, P.A. is a commercial litigation and construction litigation law firm, handling all business and personal claims. Andrew Douglas is a construction attorney, commercial attorney, and criminal attorney admitted to practice law in the State of Florida, and handling Florida Law Cases.

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713.18 Manner of serving notices and other instruments.—

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QUALIFIER AGREEMENT

This Agreement made this ____ day of April, 2013 by and between ______ (hereinafter “Qualifier”) and _______, (hereinafter “Company”) wherein it is agreed as follows:

1. Qualifier’s Obligations-    Qualifier shall be employed by and act as Qualifier for Company as such position is defined in Florida Statute Section 489. et seq., and shall perform all duties and obligations ascribed to a Qualifier pursuant to Florida Statute Section 489. et seq.
2. Compensation-      Company shall pay Qualifier an annual salary of _______, together with a bonus based upon the schedule attached hereto as Exhibit “A”.
3. Term-        This Agreement shall continue at Company’s discretion, or upon termination as provided herein. Qualifier shall maintain an active state of Florida General Contractor’s License throughout the term of this Agreement.
4. Indemnification-    Company shall defend indemnify and hold Qualifier harmless from all liability attributable to Qualifier’s performance of his duties as Qualifier under this Agreement, with the exception of any intentional or willful torts or other intentional acts of misconduct.
5. Termination-          Qualifier shall not terminate this Agreement or take any action to remove itself as the Qualifier of Company except with 120 days prior written notice to Company. Company may terminate this agreement at will upon thirty days written notice to Qualifier.  In such event, Qualifier shall be entitled to salary through one month after the effective date of termination, together with Qualifier’s pro-rata share of any Bonuses accruing through the last date of Qualifier’s performance as Qualifier.

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“The law requires that each defendant have sufficient time to prepare a defense, including the opportunity to utilize available procedural discovery rules provided for that purpose. Florida Rule of Criminal Procedure 3.220(a) (1)(i) requires the prosecution to disclose to defense counsel the “names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.” It necessarily follows that the trial court must allow defense counsel the time to interview these persons to properly prepare for trial. Valle v. State, 394 So. 2d 1004, 1008 (Fla. 1981) (emphasis added.) (Negative treatment on other grounds).

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What is the difference?

What should you use?

AS-IS CONTRACT INSPECTION PROVISION

Download (PDF, 242KB)

AS IS Residential Contract For Sale And Purchase

STANDARD INSPECTION REPAIR PROVISIONS 

Download (PDF, 420KB)

Residential Contract For Sale And Purchase

Commonalities

• Both forms give Buyer rights to inspect
• The different forms provide potentially equal (but different) benefits to Buyers and Sellers.
• Florida Law Still Requires that Seller disclose any known defects that materially effect the value of the Property.

Characteristics of As-Is

• Power is with Buyer- Buyer has unconditional right to cancel contract after inspections and WALK AWAY, during inspection period.
• Buyer has NO RIGHT to force  Seller to make any repairs
• Buyer can always posture and “threaten” to cancel contract and walk away if certain repairs are not made by Seller (but Seller can decline)

Characteristics of Standard Inspection Form

• Power to cancel contract is with Seller-as Seller can elect to pay for repairs.
• Contract sets a Repair Limit – if repairs form inspector are determined to be within this limit, Seller must pay for those repairs.
• Even if repairs are in excess of Repair Limit- Buyer has the right to elect to make such repairs.
• Buyer cannot unilaterally cancel contract based on inspection, unless Seller chooses not to make repairs

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The economic loss rule precludes actions in tort which are completely economic and which arise out of contract. Under Florida law, the economic loss rule operates to bar tort claims for purely economic loss in cases involving a defendant who is a manufacturer or distributor of a product or where the parties have contractual privity. See Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532, 536 (Fla. 2004).

If the parties have contractual privity, and a claim for tort simply restates a claim for breach of contract, the tort claim is barred. Eclipse Med., Inc. v. Hydro-Surgical Instruments, Inc., 262 F. Supp. 2d 1334, 1354 (S.D. Fla. 1999), aff’d, 235 F.3d 1344 (11th Cir. 2000); see also Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294, 1316 (11th Cir. 2007) (stating that the fraud claim was the exact basis for the breach of contract claim and that the economic loss rule “probably” applied); Time Int’l, S.A. v. Safilo U.S.A., Inc., 802 So. 2d 382, 383-84 n.1 (Fla. Dist. Ct. App. 2001) (stating that a claim for fraud in the inducement is not barred by the economic loss rule as a matter of law, but if the claim is not independent of contract, then the economic loss rule will apply).

Underlying the economic loss rule is the assumption that the parties to a contract have allocated the economic risks of nonperformance through the bargaining process. A party to a contract who attempts to circumvent the contractual agreement by making a claim for economic loss in tort is, in effect, seeking to obtain a better bargain than he originally made. Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So. 2d 532, 536 (Fla. 2004).
The only exception to the economic loss rule to plead fraud in a contract arena is fraudulent inducement.

“To state a cause of action for fraud in the inducement, the Plaintiff must allege (a) a misrepresentation of a material fact; (b) that the representor of the misrepresentation knew or should have known of the statement’s falsity; (c) that the representor intended that the representation would induce another to rely and act on it; and (d) that the plaintiff suffered injury in justifiable reliance on the representation.” Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 497 (Fla. 4th DCA 2001) (emphasis added.)

See Connecticut Gen. Life Ins. Co. v. Jones, 764 So. 2d 677, 682 (Fla. Dist. Ct. App. 1st Dist. 2000), The potential for recovery of both punitive damages and consequential tort damages makes the pleading of an alternative count alleging fraud in the inducement extremely tempting in breach of contract cases. In Puff ‘ N Stuff of Winter Park, Inc. v. Bell, 683 So. 2d 1176 (Fla. 5th DCA 1996), Judge Harris recognized this problem in a special concurrence when he observed that “almost any contract claim can also be framed as a fraud in the inducement action.” Id. at 1179 (Harris, J., specially concurring). Judge Griffin responded in a dissenting opinion, however, that the problem should be resolved by the courts requiring specific allegations of all of the necessary elements of fraud. See id. at (Griffin, J., dissenting). Judge Griffin stated, I agree with Judge Harris that fraud is a much overused and misused cause of action. Its abuse has been fueled by the access it provides to otherwise unavailable discovery and to punitive damages. Its misuse has been exacerbated by Florida’s embrace of the “promissory” form of fraud whereby a promise made with no intent to perform is deemed actionable as fraud. Unfortunately, too many cases have gotten to the jury and large tort verdicts have been rendered on a theory of fraud that had no business being anything other than breach of contract.

The problem is not with the distinction between fraud and breach of contract, however, the problem lies in our courts’ failure to appreciate or require competent proof of the distinct elements. The statement that virtually any breach of contract action can be pleaded as fraud in the inducement proves the point. Every breach of contract cannot be pleaded as fraud in the inducement–at least, not properly. Certainly, the classic type of fraud present in this case–a knowingly false representation of fact–requires a specific allegation of such a false representation. Even “promissory fraud,  ” however, requires a specific allegation (and ultimate proof) that the promise was made with no intent to perform.

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