Ask Me Help Desk - Loser Pays in Florida?

Hello All:

Unfortunately, I recently lost a case filed against my condominium association for damages to my vehicle. I had overwhelming proof that the complex's brick wall fell directly onto my car (photos, descriptive police report, debris from the wall still stuck to my car, mechanic, etc.) , but the judge said that I did not prove any negligence on the association's part. I did not prove, according to the judge, that the wall had been "deteriorating over time". How the hell was I supposed to prove that?

Anyway, I've actually gotten over that part, and I understand (now) the whole proof of negligence rule. However, I'm worried that I will have to pay the association's attorney fees here in Florida, since I lost the case. I was without counsel, so I certainly can't afford theirs.

Does the "loser pays" rule apply to every single case in Florida? The judgement, which was mailed to me 2 weeks ago, made no mention of it.

Thanks in advance.

[QUOTE=Innie]Hello All:

Unfortunately, I recently lost a case filed against my condominium association for damages to my vehicle. I had overwhelming proof that the complex's brick wall fell directly onto my car (photos, descriptive police report, debris from the wall still stuck to my car, mechanic, etc.) , but the judge said that I did not prove any negligence on the association's part. I did not prove, according to the judge, that the wall had been "deteriorating over time". How the hell was I supposed to prove that?

Anyway, I've actually gotten over that part, and I understand (now) the whole proof of negligence rule. However, I'm worried that I will have to pay the association's attorney fees here in Florida, since I lost the case. I was without counsel, so I certainly can't afford theirs.

Does the "loser pays" rule apply to every single case in Florida? The judgement, which was mailed to me 2 weeks ago, made no mention of it.

Negligence lawsuits can be brutal - sometimes even if you get past the "can you prove it" stage then you get into the "did you tell anyone" stage. Sorry you lost this one - sounds like you sure did your best to find and present proof.

Anyway - what do the condo association bylaws say about suing the association? That would rule here. In NYS the Judgment says, "x for damages and x for fees and expenses" (if that is the case.) I recently sold a condo, just looked at the association papers and they DO say that if anyone sues the Association and loses, they (the suing party) are responsible for the condo's legal fees. I find this rather unconscionable but truly never noticed it before.

The law in Florida is: "In business litigation, the prevailing party generally pays its own legal fees. Exceptions to this rule sometimes are provided by statute or by agreement between the parties. For example, some civil rights laws provide that legal fees may be awarded to a prevailing party who sues an employer for illegal discrimination.

Occasionally, business contracts will include provisions requiring the losing party to pay the prevailing party's legal fees in any dispute arising under the contract. Such legal fee provisions generate a great deal of disagreement in the legal profession. Some lawyers insist upon including such a clause in every contract they draft, while other lawyers counsel their clients never to sign a contract that contains one. Legal fee provisions are a sword that can cut both ways. The loser winds up paying the winner's legal fees, but there is no way to know who will be the winner in an disagreement. However one feels about them, legal fee provisions are now included in most printed leases, promissory notes, and other business contracts. Because legal fees can be very expensive, it is worth considering carefully the possible effect of such a provision before signing an agreement that contains a legal fee provision. "

If it does not list it, most likely you will be OK, but does the Condo association rules say anything about the fees.

From Judy's research, it looks like you are safe here. However, this points out how important a lawyer can be. Had you spent even the cost of an initial consult you probably would have learned that you have to prove negligence, not just the results. And that would have saved you wasting your time.

The judge was correct. You would have had to show either that the wall was crumbling or leaning AND that the HOA was aware of it and didn't take action.

Quote:

Originally Posted by ScottGem

From Judy's research, it looks like you are safe here. However, this points out how important a lawyer can be. Had you spent even the cost of an initial consult you probably would have learned that you have to prove negligence, not just the results. And that would have saved you wasting your time.

The judge was correct. You would have had to show either that the wall was crumbling or leaning AND that the HOA was aware of it and didn't take action.

And let's put a word in for investigators who could have asked around, found if anyone else noticed the wall was crumbling or, more importantly, had told someone in management, the association, somewhere, maybe could have "made" a case. Or at leat proved it.

Slip and falls, by the way, are like this now - the property owner has to be aware of the hazard, be informed, do nothing. Negligence is most definitely not an easy thing to prove.

Same with dog bites - vicious propensities which are usually ascertained by asking a cross section of neighbors (and mailmen and mail personnel). I personally try to avoid the neighborhood dog haters.

Quote:

Originally Posted by ScottGem

From Judy's research, it looks like you are safe here. However, this points out how important a lawyer can be. Had you spent even the cost of an initial consult you probably would have learned that you have to prove negligence, not just the results. And that would have saved you wasting your time.

The judge was correct. You would have had to show either that the wall was crumbling or leaning AND that the HOA was aware of it and didn't take action.

I quoted you, because that is the BIGGEST lesson I learned from this. Even a consultation could have saved me. I purchased a "do-it-yourself" book and got myself all pumped up! I had spoken with so many people at work, and it's amazing how many people (including myself) didn't factor in the "proving negligence" part at all! Everyone thought I had an easy win, simply because it was the association's property that caused the damage.

I should have mentioned that I do not own the condo. I am renting it from the owner, so I signed nothing but a very basic landlord/tenant lease that she prepared. Hopefully, that helps my situation.

Thank you all for your help.

Quote:

Originally Posted by Innie

I quoted you, because that is the BIGGEST lesson I learned from this. Even a consultation could have saved me. I purchased a "do-it-yourself" book and got myself all pumped up! I had spoken with so many people at work, and it's amazing how many people (including myself) didn't factor in the "proving negligence" part at all! Everyone thought I had an easy win, simply because it was the association's property that caused the damage.

I should have mentioned that I do not own the condo. I am renting it from the owner, so I signed nothing but a very basic landlord/tenant lease that she prepared. Hopefully, that helps my situation.

Thank you all for your help.

Don't know how much time and work you want to put into this - or the monetary damages - but SOME Small Claims Judgments can be appealed. Is it worth your time to ask around and see if anyone by any chance ever reported this condition to management and then determine whether to appeal?

Quote:

Originally Posted by JudyKayTee

Don't know how much time and work you want to put into this - or the monetary damages - but SOME Small Claims Judgments can be appealed. Is it worth your time to ask around and see if anyone by any chance ever reported this condition to management and then determine whether to appeal?

That's a good idea, but I'm concerned about whether my new findings of negligence would be considered fact or law. Based on what I've read about Florida small claims appeals, they have to be based on law, not fact.

I think I would have to find some law that the judge overlooked that would have entitled me to a compensation. Oh! I just remembered as I'm typing this... that appeals cannot be based on any new evidence. I'd better leave it alone. The court would just take my 300.00 and deny my appeal. Just to be sure, however, I will check that out with a Florida attorney.

Thanks so much.

[QUOTE=Innie]That's a good idea, but I'm concerned about whether my new findings of negligence would be considered fact or law. Based on what I've read about Florida small claims appeals, they have to be based on law, not fact.

I think I would have to find some law that the judge overlooked that would have entitled me to a compensation. Oh! I just remembered as I'm typing this... that appeals cannot be based on any new evidence. I'd better leave it alone. The court would just take my 300.00 and deny my appeal. Just to be sure, however, I will check that out with a Florida attorney.

My thinking is - and I'd have to take another look at Florida law - that the basis of an appeal would be negligence law - the condo was aware and did nothing - if the condo was aware and did nothing!

And appeals in Small Claims really are an uphill fight.

Was just a thought -