card Merill attorneys Jessica Farrelly and Anthony Mangianello, participants in the Leadership Sarasota 2017 class through the Sarasota Chamber of Commerce, recently conducted the ribbon-cutting at the Roy McBean Boys and Girls Club. Unveiled was a 'rain or shine' play area for the children, benches, and a special reading area for kids at the Boys and Girls Club.
Each year, Leadership Sarasota classes strive to make a positive impact on the greater Sarasota Community through professionals conducting outreach efforts and spearheading special projects.
The event was covered by the Sarasota Observer here.
In a case that might represent a metaphor for the process of divorce consuming the last of the love between two people, a recent case touches also on the realities of divorce litigation and its expense. In the case of Rosaler v. Rosaler, 42 Fla. L. Weekly D1061a (Fla 4th DCA 2017), the Court remanded the final judgment of divorce to allow the trial court to reassess financial findings in the case. The wife in the action had sold her diamond ring from the marriage and used the approximately $60,0000 proceeds to fund her legal battle with the husband.
In the course of making the final determination, the trial court considered the $60,000 part of the wife's share of the marital estate rather than a temporary support payment, according to the Appellate Court, and without making proper findings that the wife had entitlement to temporary support in the form of attorneys' fees (i.e., an inability to pay and need and an ability to pay by the husband). Therefore, the wife suffered potentially a $30,000 loss as a result of the judgment as a result of improper ruling not based on findings by the Court.
Leaving aside the other metaphorical considerations for the moment, this case should serve as a reminder to parties in a divorce that mistakes can be made, even by judges, and the assistance of competent counsel at the appellate level may have made the difference in many thousands of dollars for this now former wife. If you have questions about your divorce or the process of obtaining one, speak to the outstanding family law attorneys at Icard Merrill today.
A recent decision in the 11th Circuit in Broward County highlights a rule that can have very severe application for tenants in an eviction case. The case of Fagan v.New Hope Dream Team Charity, Inc. (24 Fla. L. Weekly Supp. 925a) reminds tenants of the pitfalls of 83.20(2), Florida Statutes. In fact, this section has been referred to as being a "no mercy" system for tenants, as well as commonly called "pay to play." The Section requires tenants, within only five days after being served with the complaint, to either post with (i.e., pay to) the clerk of the court all of the claimed back owed rent or to file a motion to determine how much that rent should be. If the tenant fails to do either, the landlord is entitled--without a hearing or notice--to a court order granting the landlord possession of the property and the tenant is deemed to have waived all defenses related to the possession of the property.
While many deadlines in litigation can be either extended or even remedied if the missing of such a deadline was a good faith mistake with proper action taken to correct it quickly, Florida Statutes 83.20 allows for no wiggle room or apologies. In fact, courts are forbidden from even taking into consideration the reasons the deadline was missed (including potentially even a serious injury or other real and actual emergency). See, Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, *812 (Fla 3d DCA 2010).
It is critical that both landlords and tenants know their rights and be aware of the timelines and requirements imposed in an eviction in order to preserve that party's rights in a landlord-tenant eviction action. If you have questions about your lease or about eviction, contact our landlord-tenant litigators today.
In a sad (if also slightly comical in title only) case recently decided in the 17th Circuit in Broward County, a couple that later split ended up suing one another for the dog the two shared while a happy couple. Persinger v. Pitts, 24 Fla. L. Weekly Supp. 998b. In what was potentially meant to be a wake up call to two litigants who may have had designs more on spite and revenge than on establishing ownership of the dog, the Court dismissed the case finding that the two were joint owners of the dog and that neither of them could sue the other for replevin of the furry companion.
Instead, the court advised that the parties were free to bring a partition action regarding the pup, which would be sure to send animal rights activists into a frenzy. Although physical partition of property (i.e., "I get this half and you can have that half") is a remedy that is available to parties, it seems unlikely that the poor dog would be subjected to anything more than court-ordered visitation and habitation schedule if the matter were brought as a partition. One other thing sometimes done with real property in a partition action is where the property itself is sold and the proceeds split between joint owners. Presumably that would not be a merry result for the trio either.
As this case shows, domestic disputes can sometimes lend some source material fit for Hollywood in terms of the extreme steps and battles undertaken by the parties. In order to help prevent or wind down some of the (often quickly spiraling) hostilities and to protect you from losing your rights, it can be essential to talk to an experienced family law attorney. Contact our family law attorneys in Sarasota and Port Charlotte today if you need help.
A 2017 case decided in the Third District illustrates one of the (numerous) nuances of offers of judgment and proposals for settlement pursuant to Florida Statutes § 768.79 and Florida Rule of Civil Procedure 1.442. Case law has traditionally referred to a requirement that these procedural mechanisms for triggering liability for attorneys' fees must be made in "good faith" with respect to the amount offered. There have been numerous cases exploring the issue of whether offers are made in good faith and whether certain offer amounts can lead to a finding that the offer was not made in good faith.
As the Court notes in its opinion UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. PARTNERS IN HEALTH CHIROPRACTIC CENTER (24 Fla. L. Weekly Supp. 785a), "[t]he rule is that a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal.” E.g., State Farm Mut. Auto. Ins. Co. v. Sharkey, 928 So. 2d 1263, 1264 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1445a] (citations and quotation marks omitted)." However, the important part of that ruling could be argued to be that the party could reasonably believe "its exposure" was nominal. The instant case seems to expand that ruling.
In this action, the defendant proposed settlement for a total amount of $500. The defendant argued after the fact that the offer was made in good faith since the insurance company believed the whole time that it was very likely to win the case. Having litigated many dozens of cases, this blog's author has yet to meet a party that did not feel it was right and at least fairly likely to win the case. However, the Court noted that, since the defendant was consistent (or perhaps persistent) in its belief that it was, indeed, correct and would win at trial, the offer was made in good faith.
What was argued--and ultimately dismissed by the Court--was that the defendant's exposure could never really have been anywhere close to $500. Since there were legal issues being decided on both a helpful and hurtful side of the fence for defendants during the action, the insurer would eventually be proven right or wrong. Although the chances of being proven right may have been on the side of the insurer, leading to its confidence in its position, its exposure if incorrect would have always been far greater than the $500 offered. Therefore, the rule of assessing reasonable expectations of "exposure" could be argued to have melded into the concept of self-confidence in the likelihood of success. Based on this ruling, any party who ultimately prevails will need to show only that an offer was made and that the party was very sure throughout the case that it would win and the proposal is likely to be upheld (especially so since it is very difficult to argue that an expectation of winning was unreasonable when a party does indeed win down the road).
If you have questions about your case or the complex world of offers of judgment or proposals for settlement, contact one of our litigation attorneys today.
Though we have noted in this blog the rarity--if not potentially the impossibility--of obtaining a "free house" in mortgage foreclosure cases, as many borrowers chase much like Captain Ahab looking after his great white prize, one decision shows the extremely limited factual circumstances where a party can obtain just that.
In the case of REVERSE MORTGAGE SOLUTIONS, INC. versus the heirs of Ruby Lee Hayes (24 Fla. L. Weekly Supp. 938a), the court was faced with a reverse mortgage that was the subject of a mortgage foreclosure, which is not of itself an unusual proposition. However, what made this case unique was the fact that the bank (or perhaps its counsel) were so inattentive (which, again, is not altogether that unusual in and of itself) that it went unnoticed that more than five years had passed since the original action to foreclose had been dismissed by the trial court. Whereas, under the newest Bartram v. U.S. Bank, N.A., 41 Fla. L. Weekly S493 (Fla. November 3, 2016) case law, the statute of limitations is extended by each missed payment regardless of acceleration of the note by the bank, in this action, the default was the passing of the borrower, Ruby Hayes.
Since no payments were due (being a reverse mortgage), the court determined that no continuing default was present through which the bank could claim an extension of the statute of limitations. Final Judgment was entered in favor of the borrower's lone heir, awarding her the house and denying the bank's effort to foreclose the mortgage and note.
It's not immediately clear what the heir's plans are for the home, but should she elect to stay in the home for the remainder of her life, it may prove very difficult for the bank to collect anything on its note and mortgage whatsoever. At least for the time being, we appear to have a verified sighting of the fabled "free house" foreclosure unicorn.
Last week, on April 28, 2017, several attorneys from Icard Merrill attended a continuing legal eduction event that was put on by the Manatee
and Sarasota Florida Association of Women Lawyers ("FAWL"). The event, attended by Icard Merrill attorneys Jessica Farrelly, Alyssa Nohren, Anthony Manganiello, Jason Lessinger, and John Waskom, was sponsored in part by Icard Merrill (a Silver Sponsor).
The event presented an opportunity for local attorneys to spend the morning with local judiciary, including Chief Judge Williams, Judge Arend, Judge Henderson, Judge Mercurio, Judge Walker, Judge McHugh, Magistrate Bailey, Magistrate Inman, and Magistrate Hunt. Featured were breakout sessions and a general session on professionalism with numerous members of the judiciary as panelists.
Implementation of the Department of Labor’s (“DOL”) proposed overtime rule remains in limbo as the Fifth Circuit Court of Appeal recently approved the DOL’s third request for an extension of time to file its reply brief in order to “allow incoming leadership personnel adequate time to consider the issues.” The most recent extension came within a week of the U.S. Senate’s confirmation of the nomination of Rene Alexander (“Alex”) Acosta as the Secretary of Labor which occurred on April 27, 2017. Accordingly, the DOL’s reply brief is now due June 30, 2017 giving the DOL another two months to evaluate its options, which may include anything from abandoning the appeal altogether to revising the rule to reflect more modest adjustments.
Secretary Acosta does not appear to support the Obama Administration’s efforts to implement and enforce the new overtime rule which would require employers to more than double the current minimum salary requirement of $23,660 to $47,476 in order to maintain the overtime exemption for “white collar” executive, administrative, and professional employees. Acosta has voiced his opinion that such a jump would create “a stress on the system.” Acosta is, however, sensitive to the fact that the threshold has not been updated in more than a decade. He has expressed an interest in consulting further with officials at the Department of Justice to determine whether the DOL has the authority to increase the salary threshold at all. If so, Acosta is on record supporting more modest increases to mirror inflation. During his March 22, 2017 confirmation hearing before the Senate, Acosta stated his belief that the salary threshold should be “somewhere around $33,000” after taking into account inflation to the cost of living since the last time the regulation was adjusted in 2004.
So, in a nutshell, it remains to be seen whether the proposed increase in the salary threshold will be pursued and implemented. In the meantime, however, employers are still encouraged to evaluate “white collar” employees’ primary job duties in order to assess whether they truly meet the second prong of the two-prong exemption analysis – the duties test.
We will continue to provide updates as more developments occur regarding the status of the DOL’s appeal and/or the fate of the new overtime rule.
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If you have any questions or would like guidance regarding compliance with wage-and-hour laws or other general employment law matters, please contact Jessica M. Farrelly, Esq. in the firm’s Employment Law Practice Group.
An opinion issued by the Supreme Court of Florida in April touched on a mixture of long-time and more recently trending complaints about personal injury litigation in Florida and raised serious questions on what could be argued has become an industry of sorts.
In Worley v. Central Florida Young Men's Christian Ass'n, Inc. 42 Fla. L. Weekly S443b (Fla., 2017), the Court examined practices by a large and very well-known Florida law firm (you've seen the billboards and likely heard the radio or television ads, as well) and the firms "network" of physicians and health care providers and how the firm advises its clients.
In Worley, the allegations of the insurance company were essentially that the firm was steering clients (including perhaps those that did not ask for help seeking medical attention) to several health care providers that had a "cozy agreement" with the firm. The insurance company argued that cozy relationship included the fact that health care providers provided care almost entirely on the basis of "letters of protection" (which means the facility agrees it will provide services with the hope of getting paid from the personal injury lawsuit and not the patient at the time of service) and that the bills generated for those services were extremely high (or, in some cases, potentially fraudulently high) compared to other providers in the area. Implied in the claims by the insurer is the concept that these providers could be rendering these bills as part of a scheme to help the law firm increase damages for purposes of settlement or trial.
The Supreme Court did not allow the insurer to do further discovery into the nature and extent of the relationship between it and the health care providers through the firm's client and further refused to allow inquiry into whether the firm "steered" the client to these providers. This ruling may help keep the shroud in place which covers the potentially seedier side of financial relationships between some law firms and some medical providers in personal injury cases. Some may argue that this ruling could embolden law firms to push the limits of ethical or legal behavior in relationships with care providers given the financial incentive to bend or break the rules and the protections from discovery that this ruling could yield.
The Fourth District Court of Appeals issued an opinion on April 5, 2017 that receded from its previous precedent on the issue of the causation standard a plaintiff must successfully prove in a Florida Civil Rights Act retaliation claim. The move appears to be a win for employers, as it raises the standard from "wholly unrelated"--meaning the employee needed only previously show that the protected activity by the employee and the retaliatory action by the employer were not "wholly unrelated'--to "but for"; meaning that employees must now show that they would not have been terminated or retaliated against "but for" the protected activity.
This represented a change from the court's precedent as set forth in Guess v. City of Miramar, 889 So. 2d 840 (Fla. 4th DCA 2004) to bring the standard of proof in line with that rendered by the United States Supreme Court in its decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013). Therefore, though the protections remain the same for employees under the Fourth District's new ruling, the burden of proving a claim of wrongful conduct by the employer has increased on employees.
If you are an employee that believes you are being retaliated against following some protected activity (e.g., you participated in an investigation of a discrimination claim or made such a claim yourself or threatened to or did report illegal activity by the employer), the advice of an attorney can be in some cases essential to ensure you file your claim in a timely manner and help stop retaliatory actions by your employer.
If you are an employer that needs help ensuring that it is taking the right steps in handling discrimination claims or investigations or need help educating and training managers in retaliatory behaviors to avoid, an attorney can be an invaluable resource, as well. In either case, the Employment Law attorneys at Icard Merrill are available to help.
Satellite television often has a number of unseen hurdles and obstacles that is must navigate in order to reach the dish mounted on your roof. Though people often think of storms, debris, signal interference, and other obstacles, satellite must also overcome market and legal hurdles, as well, as one recently decided case discusses.
In the case of Florida Department of Revenue v. DIRECTV, Inc., 42 Fla. L. Weekly S455a (Fla., April 13, 2017), the satellite television provider DirecTV challenged a tax provision called the "Communications Services Tax," which charged a rate of almost eleven percent on satellite services compared to a rate of just under seven percent on cable services originally (currently, satellite services are charged almost double that of cable, with over nine percent for the former and less than five percent for latter).
Understandably, DirecTV felt as though this law helped create an unfair playing field for the competing service providers. It sought to have the tax invalidated under the requirement that "statutes that openly discriminate against out-of-state economic interests in order to protect in-state interests are subject to a per se rule of invalidity.” Simmons v. State, 944 So. 2d 317, 330 (Fla. 2006).
However, despite what is arguably a clear cut case of discrimination in practical application, the Supreme Court of Florida held that the tax did not discriminate either facially, in its intent, or in its practical application. The Court also found that, despite heavy investment in local and state-wide infrastructure, cable service providers were not an in-state interest for purposes of the challenge by DirecTV under the Commerce Clause.
Many things in business which seem clear cut are not so clear under the law. Having the advice and assistance of an experienced business attorney can not only help level the playing field for your business, but can often also help save a business a substantial amount of money in the long-run. Contact the Business attorneys at Icard Merrill today for a consultation about your business rights.
Placement of children with a parent is one of the most challenging and emotional disputes that take place in civil courts. Things can often be even more tense and challenging when one parent resides out of state. In order to better position courts to tackle these challenges, Florida is one of a number of states that have adopted the Interstate Compact on the Placement of Children (ICPC) via Section 409.401, Florida Statutes.
A recent case outlines some of the requirements the ICPC places on Florida courts. In Lawler v. State, 42 Fla. L. Weekly D879 (Fla. 1st DCA April 18, 2017), the First DCA was faced with the unenviable task of unwinding a notedly "well intentioned" order by the trial court on the basis of failure to adhere to the requirements of ICPC.
Specifically, the trial court was found to have failed to obtain a home study of the Indiana home of the father of two of the children, the children could not be allowed to remain in his custody until the home study was completed. The record showed that the father and the Department of Health (through DCF) had attempted on several occasions a home study report from Indiana officials without success. Despite the fact that the children did well residing with the father after being fostered with grandparents following removal from the mother's home due to a domestic violence incident, the law required a home study before final placement could be made. Though the appellate court rang a sympathetic (and almost apologetic) tone, it upheld the requirements of the law and sent the case back for further proceedings on that issue.
If you are facing questions about the placement of children or the shared parental responsibilities and requirements under Florida law, reach out to the Family Law attorneys of Icard Merrill today for help.
Two cases recently decided highlight the differences between alimony awards depending on whether the marriage is considered short-term or long-term. RODRIGUEZ v. LORENZO, 2017 Fla. App. LEXIS 4653, 42 Fla. L. Weekly D 790, 42 Fla. L. Weekly D 790 (Fla. Dist. Ct. App. 3d Dist. Apr. 5, 2017) dealt with a marriage of four years at the time of filing (six years by the time the decree was entered dissolving the marriage), while COOK v. COOK, 2017 Fla. App. LEXIS 4620, 42 Fla. L. Weekly D 770, 42 Fla. L. Weekly D 770 (Fla. Dist. Ct. App. 2d Dist. Apr. 5, 2017) dealt with a marriage that lasted eighteen years.
Under Florida law, there is a rebuttable presumtion that "a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater . . . . until the date of filing of an action for dissolution of marriage." § 61.08, Fla. Stat. Under Florida statutes, there is a rebuttable presumption that a marriage that is short term should not result in permanent periodic alimony, as noted by the Court in the Rodriguez case. Whereas, in long-term marriages, the Court must determine whether there is a need by the spouse seeking alimony and whether there is an ability to pay by the other spouse. If those criteria are both met, alimony is then awarded, as mentioned int he Cook case.
As is often the case, these presumptions are usually rebuttable, which makes each case a very fact-specific endeavor. The help of a trusted and experienced attorney can often mean the difference in many thousands of dollars over the course of life after divorce.
If you have questions about whether you are entitled to alimony or whether your spouse may be entitled to alimony if a claim for it is made, contact the excellent Family Law attorneys at Icard Merrill today. They can help you understand your rights and obligations.
We have on several occasions in this blog touched on the requirements of standing for the lender, evidentiary requirements for the default notice, and foundation for bank witnesses. Though recently there had seemed to be a tightening of requirements for proving the sending of the default notice and for qualifying a witness to speak on another institution's default notice generation protocols and record-keeping, a recent case seems to again potentially lessen the burden on lenders seeking to foreclose.
In the case of JPMORGAN CHASE BANK NATIONAL ASSOCIATION v. JEAN PIERRE 2017 Fla. App. LEXIS 4632, 42 Fla. L. Weekly D 781, 42 Fla. L. Weekly D 781 (Fla. Dist. Ct. App. 4th Dist. Apr. 5, 2017), the Fourth District Court of Appeals reversed judgment in favor of the borrowers and ordered entry of judgment for the lender (actually, the successor in interest to the lender) on the basis that the trial court's findings that the bank had not proven that a default notice had been sent and that it had not proven standing were contrary to the law.
In this case, though the witness that appeared worked for a third party servicer for the bank, she speculated about the date upon which the note had been transferred and testified that the servicer--not the bank that brought the action--owned the note. Further, she testified that she had learned during her training at the servicer about the original (not the current lender that her company was actually representing) lender's default notice generation protocols and that she was aware, generally, with those protocols and that her company had verified through collection notes that the letter had been sent.
Citing issues with standing given the testimony by the record custodian that a party other than that which filed the complaint actually owned the note and testimony which apparently led the trial court to determine the witness did not have actual familiarity with the originating lender's default notice policy, the trial court entered judgment in favor of the borrowers. The appellate court reversed and ordered entry of judgment in favor of the lender, stating (in sum) that the stated familiarity with the process by which a third party originating lender generally goes about sending letters with notice of default was sufficient and that it did not particularly matter when the witness believed the endorsement was signed transferring the note and it did not particularly matter that the witness thought her company owned the note in question rather than the Plaintiff lender.
A subtle maneuver was made by the appellate court here, as well. Though the standard of review was de novo, since the issues were deemed a matter of law, the question of whether the witness knew about the default notice procedure and whether a letter was sent was an issue of fact, since the borrowers had denied that a letter had been sent. The appellate court seems to have taken the bank witness testimony at face value and disregarded the denial by the borrowers that any notice had been sent. The trial court (which is presumed to be in the best positoin to weigh credibility of a witness) was disregarded by the appellate court on this point, which perhaps was due to the fact that the trial court did not make a finding on the record that the witness was not credible in her testimony.
Compare this case to the recently reviewed case of Allen v. Wilmington Trust, N.A., 2017 Fla. App. LEXIS 3970 (Fla. 2d DCA 2017), which we discussed here.
If you have questions about a foreclosure, a contract, or other real estate dispute reach out to the foreclosure attorneys of Icard Merrill today.
The question of who "holds" the note and mortgage (even where, as is often the case, the 'holder' cannot physcially hold the note and mortgage because they are lost) is one of the most often litigated aspects in residential foreclosures. Borrowers in default and looking for ways to keep their home (or at least to stay in the home mortgage free for as long as possible), often find themselves getting a crash course over the internet on concepts such as the "holder" of the note, indorsements, allonges, indorsements in blank, and standing. Speak to a borrower that is a veteran of a multi-year, multi-action foreclosure and an uninitiated attorney may even learn a few things about these terms as well.
Another recent case before the Fourth DCA touches on several of these concepts and helps give more guidance to those defaulted borrowers seeking to stem the virtually inevitable tide of foreclosure of their home. As the court in PennyMac Corp. v. Frost, 2017 Fla. App. LEXIS 3441 (Fla. 4th DCA 2017) stated, the note in question was originally indorsedn in blank by the original lender, however, that indorsement was marked "void." Subsequently, an allonge and blank indorsement was executed by a successor in interest to the original lender. The borrower argued (and the trial court agreed) that the original void indorsement rendered any subsequent indorsement invalid for purposes of standing without more steps being taken as a nonholder in possession of the note and with the rights of a holder.
Foreclosure actions can be challenging and very confusing to the uninitiated. Talk to an attorney in the foreclosure group at Icard Merrill today if you have questions about your home and mortgage.
The Second DCA issued an opinion this month on a topic that has become a bit of a hot button issue and technique among defense firms in recent months--the practice of seeking dismissal on the basis of a plaintiff's alleged fraud on the court. In Duarte v. Snap-On, Inc., 2017 Fla. App. LEXIS 3414 (Fla. 2d DCA 2017), the Court outlined what has become a popular tool for defense counsel; the defense finds discrepancies between a complaint, the party's discovery responses, and the party's deposition testimony and highlights those discrepancies in a motion to dismiss the case on the basis of an attempted fraud against the court.
The reasoning is sound, if less than scrupulous; the defense gets a second chance to dismiss the case without a trial if it can show discrepancies (which exist for all parties--plaintiffs and defendants--in virtually all actions), or at worst, simply gets an opportunity to attempt to paint the other party as a liar or a non-credible witness. The Second DCA decision in Duarte helps outline the high burden for dismissal for fraud on the court by stating that the party seeking dismissal needs to prove by "clear and convincing evidence" that
his opponent "sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense
Thus, neither a mistake nor a lie is sufficient to justify dismissal in most cases. As has long been the case, the court points out that:
Generally, unless it appears that the process of trial has itself been subverted, factual inconsistencies or even false statements are well
managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim.
However, some attorneys seem to find that simply impeaching a party at trial is less effective than attempting to poison the court against that party before the trial even begins, which may explain the recent proliferation this blogger has perceived in use of this technique in recent months.