Latest Blog Entries

Dismissal for Lack of Standing in Foreclosure From Anomalous Indorsement on Assignment of Mortgage

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.  

Seeking Dismissal for Fraud on the Court as a Litigation Tool

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.  

Inequitable Conduct Doctrine in Divorce Cases

The discretion of the court in divorce actions is very broad, and the judges overseeing those actions have the ability to impose relief over a wide range of possibilities.  One area in which the court normally exercised that broad discretion is in the area of attorneys' fees.  For instance, upon a finding of need for one party, the court can impose ongoing liability for paying for that party's fees in a case on the other party if the court believes that party can pay for those fees.  Divorce actions are the only place you will generally see that type of fees where a party has not yet prevailed or where there have not been sanctions imposed.  

Sanctions is another vehicle for awarding fees, and in divorce actions, one type of sanctions are on the basis of what is called "inequitable conduct" doctrine.  As explained in a case this month before the Second District, the inequitable conduct doctrine requires a finding that the party which is to pay fees "has exhibited egregious conduct or acted in bad faith." Myrick v. Myrick, 2017 Fla. App. LEXIS 3971 (Fla. 2d DCA 2017) citing Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998).  But, the court also mentions that "[s]uch awards are rarely applicable and should be reserved for extreme cases in which a party litigates vexatiously and in bad faith" and that courts imposing the inequitiable conduct doctrine must make certain findings of fact that show and illustrate the bad faith in question.  Id.

In this case, the trial court found that:

[the] entire case, since it began at the Former Husband's relocation on January 9, 2013, was made necessary by the Former Wife's conduct, her actions, and her life choices. . . . [T]he Court specifically finds a pattern of excessive, expensive, and needless litigation. . . . [T]he Court finds that the Former Wife's actions have been abusive of the judicial system, not of taking up this Court's time, but to the two years of the parties' [*7] respective lives and that of their young son.

However, the appellate court found that these statements were not specific enough with respect to the bad faith upon which the inequitable conduct doctrine was based in this case.  The trial court did indicate it believed the wife may have "mental problems or perhaps it is just an obstinate refusal to appreciate that she is not a good person to parent the parties' child," however, that was not a specific finding of bad faith. The appellate court also mentioned that it is a high bar for bad faith conduct capable of supporing an attorney fee award under this doctrine, since it would not be enough to simply show that a party acted in a way that is "selfish and contrary to the best interests of the child." 

This case gives a small glimpse into the challenges and behaviors that are too often found in divorce actions (as well as mentioning the expense related to protracted litigation).  If you need help in a divorce action or just have quesitons about your rights and how you might avoid the expenses of a protracted divorce action, contact the family law attorneys of Icard Merrill today. 


Employer Enjoys Presumption of Harm in Non-Compete Injunction

In another high water mark for protections for employers, the recent case of Allied Universal Corp. v. Given, 2017 Fla. App. LEXIS 3459 (Fla. 3d DCA 2017), outlined various protections for employers from other cases and resulted in a case that is likely to be often cited by employers in their battles against former employees in the area of non-compete litigation.  

The Third DCA starts by broadly construing Section 542.335, Florida Statutes (Valid restraints of trade or commerce) by referencing protections for "goodwill associated with an "ongoing business or professional practice," among other things, as a basis for injunctive relief.  What makes the construction broad is that the Court found that the employer needed only establish that there were legitimate business interests, at which time there became a "rebuttable presumption of irreparable injury for purposes of obtaining a temporary injunction under section 542.335(1)(j)."  

Unlike in many instances, the employer here was not required to show any actual interference with specific current or potential customers, nor any actual injury or damage.  Simply having legitimate interests was enough to flip the burden of proof to the employee, who was expected to have evidence at the temporary injunction stage to show that the employer had not been damaged.  Understandably, the employee was unable to show the absence of injury of any sort to the employer at that early stage and an injunction was entered against the employee.  Often, the granting of an injunction is enough to break the employee's resistance and to end the case (since now the employee is unemployed, which makes funding ongoing litigation difficult, if not pointless). 

Proof of Mailing Acceleration Notice Remains Critical in Foreclosure

A recently decided case in the Second District Court of Appeals, Allen v. Wilmington Trust, N.A., 2017 Fla. App. LEXIS 3970 (Fla. 2d DCA 2017), touched on the fact requirements that must be proven in a foreclosure action with respect to the acceleration notice.  This notice has been the subject of a great many defenses at the trial court level and the subject of a fair amount of appeal briefs, as well.  

As is normally the case in foreclosures, the current servicer of the loan in Allen was not the entity in interest at the time the notice of acceleration was purported to have been sent.  Therefore (againa as is common in foreclosure cases), the new servicer detailed how it "onboarded" the previous bank's documents and reviewed them, and the designated servicer representative spoke confidently about what had happened with documents in the previous file (despite the fact that she could not have personally known what had transpired previously).  The witness said that a letter was in the file and was dated which gave notice of the acceleration and that, because the letter was in the file, it must have been sent to the borrower (because, "servicers aren't in the habit of generating letters that they don't send" claimed the witness).  However, no envelope with postage paid or other proof of actual mailing appeared in the file.  

The trial court allowed the foreclosure to continue, but the Second DCA reversed, finding that simply drafting a document does not indicate the sending of that document and that, while onboarding does allow introduction of documents into evidence of the previous bank or servicer, it does not qualify a witness to testify about what happened with certain documents without actual personal knowledge of (at a minimum) knowledge of the business practices of the party that was purportedly mailing the notice. Thus, in Alen, the Second DCA again reminds banks that, yes, they must prove that they sent an acceleration notice to the borrower in order to foreclose the property and that it is not enough to simply indicate that the letter existed and was drafted at some point. 

Icard Merrill Attorney Mark Martella helps unearth "Fabulous Finds"

Icard Merrill's own Mark Martella

continues his community outreach initiatives in an interesting way by chairing the Charlotte County Homeless Coalition's committee that was in charge of opening a resale store called "Fabulous Finds."  Mr. Martella's efforts were noted in this blurb about the store:

The Charlotte County Homeless Coalition is excited to announce the opening of its first re-sale shop, “Fabulous Finds.” Mark Martella, Esq., former President and Board Member Emeritus, serves as Chair of the Earned Income Committee that worked on this project for four years to get the doors opened. The shop features a boutique clothes section as well as furniture, electronics, appliances and other items. All profits go towards the Coalitions mission to prevent hunger and homelessness. It’s located at 4265 Tamiami Trail, Port Charlotte, Florida.

Those in the area are encouraged to see if they can find something "Fabulous" for themselves while benefitting those in need in the Charlotte County community.


Fabulous Finds Grand Opening

Supreme Court rejects requested change from Frye to Daubert in evidence code.

Despite some local groundswell and a hearty minority recommendation to bring the State of Florida’s evidence code in line with Federal standards (as well as those of a majority of other jurisdictions), the Supreme Court of Florida last week declined to adopt a 2013 amendment passed by the state legislature which replaced Frye with Daubert as the standard for admission of expert witness testimony.  In re Amendments to the Fla. Evidence Code, No. SC16-181, 2017 Fla. LEXIS 338, at (Feb. 16, 2017).

Citing “grave” constitutional concerns (and teeing up, if not hinting at a potential future ruling of unconstitutionality), the Court found the Daubert standard used in the majority of jurisdictions to be a poor fit for Florida.

Possibly the more noteworthy issue is the interplay between the branches of the State’s government.  It would be a potentially interesting discussion (at least to civics wonks or those with a fascination for tedium) to have regarding the legislature’s rule-making authority compared to the Court’s inherent power to issue and administer rules for court procedure. 

As the Court mentions in its refusal to adopt another legislative change to the “same specialty” requirement regarding medical expert testimony, “we do not address the substantive/procedural issue raised here because whether the Legislature's amendments to section 766.102(5)(a) and repeal of section 766.102(14) somehow run afoul of the trial court's inherent power or this Court's rule-making authority must be left for a proper case or controversy and not decided in this rules case.” Id. (citations omitted).

Evidence code issues such as these can often be the downfall of an otherwise viable case.  It is critical to seek the advice of an experienced litigation attorney if you are concerned about your case.  Talk to one of the civil litigators at Icard Merrill today. 

Court deals a blow to lawmakers' 24 hour waiting period for abortions by ruling it likely to be found unconstitutional

The Supreme Court of Florida issued an opinion last week in the case of Gainesville Woman Care, LLC v. State, which deals a blow to the 2015 “Mandatory Delay Law,” which requires a 24 hour waiting period for women seeing an abortion.  No. SC16-381, 2017 Fla. LEXIS 340 (Feb. 16, 2017).

In determining that an injunction preventing enforcement of the law is appropriate given a “substantial likelihood of success” in the attempt to defeat the law, the Court dismissed a list of state interests found potentially compelling by the First District, such interests to include:

. . . whether, in passing the privacy amendment in 1980, voters intended to deprive Florida and its citizens of the benefits of advances in medical knowledge and evolutions in federal law recognizing increasingly compelling state interests arising from, among other factors, the potentiality of life uniquely represented by the human fetus. Likewise, the trial court did not address the evidence of intent reflected in the State's many post-1980 laws and regulations specific to abortion; nor the evidence of voter intent reflected in the 2004 adoption of article X, section 22, of the Florida Constitution, which in effect overruled North Florida Women's and authorized a requirement of parental notice of termination of a minor's pregnancy. Id. at 282. 

. . . providing women a short time to reflect privately after receiving required relevant information, in maintaining the integrity of the medical profession by making that post-informed reflective time free from influence by a physician or clinic personnel, in protecting the unique potentiality of human life, in protecting the organic law of Florida from interpretations and impacts never contemplated or approved by Floridians or their elected representatives, and in protecting the viability of a duly-enacted state law.

Id.  Despite the First District’s clear attempt to uphold the will of the majority of voters and of their elected officials in the arena of abortion, the Supreme Court again looked to the fundamental right of a woman to her privacy and stated that none of the reasons listed by the First District could be considered compelling. 

Most interestingly, since the Court expressed in such powerful language the fundamental nature and broad expanse of a person’s right to bodily autonomy and privacy was its dismissal of any rights of the unborn child, described as the “potentiality of life uniquely represented by the human fetus” by stating “[s]uch social and moral concerns have no place in the concept of informed consent.”  Id.

It seems likely this will only be one battle in the ongoing conflict between lawmakers, the people of the State of Florida, and the Supreme Court of Florida continue in the context of constitutional rights. 

Icard Merrill Attorney Worth Graham Featured in the SCBA Docket

Icard Merrill Attorney Worth Graham recently wrote an article on securities arbitration and litigation as a primer for attorneys and clients alike.  The article can be found here and was also featured in a recent edition of the Sarasota County Bar Association's Docket, which you can find here

The article is a great read for those either curious to learn some introductory information about the workings of securities arbitration and litigation or for attorneys trying to spot issues outside of their practice area for referral to an experienced attorney.  Give it a read and, if you are in need of advice regarding securities law, contact the attorneys of Icard Merrill's securities arbitration and litigation department today. 

Deceased mother loses attorney-client privilege as to her reasons for disinheriting four of her children.

For those that don’t practice in or aren’t familiar with the nuances of attorney-client privilege in the area of trusts and estates, it may come as a shock to find that an otherwise properly preserved attorney-client privilege protection can simply be swept away by the court if questions arise regarding the will after the client has passed.

In the case of Vasallo v. Bean, the Third District outlined a clear history of legal precedent which sets forth the policy rationale for its holding; that an attorney cannot maintain a claim of attorney-client privilege (as is otherwise his or her duty under the rules of ethics) in the face of questions regarding the intent of the client in making a will when there is a dispute about that will after her death.  41 Fla. L. Weekly D2407 (Fla. 3d DCA October 26, 2016). 

In Vasallo, a mother of five disinherited four of her five children in a will drafted just one year after she had a previous will drafted (the previous will included all five children as beneficiaries).  Not surprisingly, the four left out took issue with the fifth—now sole beneficiary—and the mother’s new will.  The attorney for the mother valiantly attempted under attorney-client privilege to avoid answering questions about the mother’s wishes and motives in requesting the change, but was ordered to provide the answers and reveal his confidential communications with his deceased client.  As may have been a surprise to the attorney, the Court noted apparently long-standing rule of law that “[a]n attorney's testimony about a Will drafted by him, after the death of the testator, is not ordinarily privileged.” Vasallo v. Bean, 41 Fla. L. Weekly D2407 (Fla. 3d DCA October 26, 2016) quoting In re Estate of Marden, 355 So. 2d 121, 127 (Fla. 3d DCA 1978).

This is an important caveat to the normally confidential environment of the attorneys’ office that should be made clear to clients by practitioners and should be recalled by clients wanting to make a will—that the client’s statements about her intentions could be brought to light after her death. 

If you have questions about your will or want advise about estate planning, be sure to speak to the Trust and Estates department of Icard Merrill today.

Statutory caps on non-economic "pain and suffering" damages in medical malpractice cases declared unconstitutional.

The Second District Court of Appeals doubled down on a previous ruling in North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015), review granted, No. SC15-1858 by stating that the trial court correctly followed the Fourth District’s ruling that medical malpractice personal injury case statutory caps on non-economic damages violates the equal protection provision of the Florida Constitution.   Port Charlotte HMA, LLC v. Suarez, 41 Fla. L. Weekly D2393 (Fla. 2d DCA October 26, 2016).   

Both Kalitan and Suarez represent an extension of the Supreme Court of Florida’s ruling that similar statutory caps imposed in medical negligence wrongful death claims were likewise unconstitutional in Estate of McCall v. United States.  134 So. 3d 894, 897 (Fla. 2014).

This appears to be the judiciary striking back against the attempts of lawmakers to limit the amount of damages awardable on the basis of “soft” claims in medical negligence cases—claims that can make the practice of medicine and obtaining and providing coverage for malpractice insurance for physicians in the State of Florida difficult and costly. 

It will be interesting to see how many dominoes continue to fall as other statutory caps may find themselves in the judiciary’s crosshairs.

If you have a question about your case, about the types and amounts of damages you could be awarded, or questions about whether you may have a case at all, consult with the experienced litigation attorneys of Icard Merrill today. 

No Injunction Against Farmland Skydiving

A recent decision by the First District Court of Appeals provides at least a short-term win for lovers of fun and skydiving.  In Nipper v. Walton Cnty., the owners of a large agricultural tract defeated the County's attempt to secure an injunction against them operating a skydiving business on the property.  42 Fla. L. Weekly D171 (Fla. 1st DCA January 17, 2017).

The Court determined that the Nippers, who won a code enforcement hearing against the County previously, could not be enjoined from enjoying their skydiving since the County could not prove a clear legal right to the injunction.  The Court stated that the enforcement hearing provided that the County's position as given by the planning director was in conflict with the decision of enforcement and that enforcement's determination had been that the use of the property for jumping out of airplanes was not against code. 

If you have questions about the manner you want to use your property or questions about your rights as a property owner, our stellar land use team is available to help today.  

Trump Rollback of ACA ("Obamacare") Regulations Starts the Process of Full Reversal

Upon taking office, one of the very first official acts by newly minted President Trump was to sign an executive order curtailing enforcement of the punitive elements of the Affordable Care Act.  The full text of the EO (which can be found here) calls for enforcement agencies to "exercise all authority and discretion available to them" in order to minimize burdens of the Act pending repeal, to preserve choices in the marketplace for consumers, and to encourage open competition by insurers.  

This executive order obviously heralds the most serious efforts to date to repeal the controversial health care bill that was signed into law (potentially without even being read by many lawmakers).  This measure is being billed as an effort to reduce the impact of the more onerous provisions of the Act to employers and businesses, while trying to preserve some of the benefits achieved for consumers.  The efficacy of the change from the ACA to some form of health care bill that has yet to take shape will be a point of interest (and, likely contention) among pundits in the coming years. 

For employers, the question becomes "how does this effect my business?"  As often is the case, the effects of this enforcement 'cool down' might not be clear for some time, but it is important to speak to an attorney to find out whether your business is likely to see impacts from the changing law and what those impacts might be.  Talk to one of the employement attorneys at Icard Merrill to find out more about your business and how the ACA repeal may affect it. 

Coblenz Agreement Shields Decedent Insured's Estate

A recent decision in the case In re Estate of Arroyo, reveals an interesting mechanism for plaintiffs to seek their remedy from an insurance company that declines to defend its insured while sparing the assets of the insured itself.  42 Fla. L. Weekly D192 (Fla. 3d DCA January 18, 2017). 

In the case, the estate of a person involved in a car accident was sued by the family of the other driver, asserting negligence claims.  The claims were presented to the insurance company which promptly refused to defend the claim.  The estate then reached a deal with the plaintiffs which involved the estate agreeing to entry of a consent judgment in exchange for the plaintiffs' agreement not to enforce the judgment agains the estate.  The estate also assigned its rights against the insurance company to the plaintiff.  A bad faith claim was brought by the plaintiffs in the shoes of the insured and the insurance company attempted to defend itself with defenses of the insured against the claims.  

The court determined that the insurance company had waived its right to defend against a liability claim by refusing to defend in the first action.  Therefore, the appellate court found those defenses had been waived as a matter of law, which opened the way for the plaintiff to take the fight against the insurance company.  

The mechanism described above is called a Coblentz agreement since it originates from Coblentz v. Am. Surety Co. of New York, 416 F.2d 1059 (5th Cir. 1969).

These types of complex multi-party litigations are extremely difficult to navigate without the help of an experienced and able attorney.  Rhe litigation department of Icard Merrill is available to help you tackle these challenges.  If you have questions about your rights or a case, contact our attorneys for help today. 

Second, Seventh, and Eleventh Circuits Again Asked to Reverse Precedent on Gay Rights Under Title VII

As outlined here (and as covered by our own Jessica Farrelly here), three major Federal circuit courts are scheduled to decide whether Title VII should include in its definition of gender and/or sex discrimination the issue of sexual orientation/sexual preference discrimination.  This is a potential watershed moment in national discrimination jurisprudence, as both the EEOC and lawmakers have an eye on increasing efforts to see LGBT and gay rights included in the long-held echelons of protected class under Title VII. 

It is not unusual to see courts do a bit of a jive when it comes to balancing precedent and the tides of social evolution.  What appears to be likely to be an escape hatch of sorts for courts considering the issue will be interpretation of other acts, notably the Sherman Act, which is much more liberally construed in today's jurisprudence compared to the period when it was enacted (in the late 1800s).  

Employers, legal practitioners, and the LGBT community will be watching with great interest as these decisions are levyed in the coming months.  In the meanwhile, employers may have questions about how these changes might impact their business.  An employer should consult with an attorney if they have questions about how the law will affect their business and the experienced employment attorneys at Icard Merrill can help your business try to avoid finding itself soon under these changing tides. 

First Annual Hot Topics in Employment Law Seminar

First Annual Hot Topics in Employment Law

Over the past year, enforcement activity across all employment law areas has increased. The EEOC continues to spearhead efforts to broaden the federal antidiscrimination and retaliation laws, and its task force on harassment in the workplace issued guidance on "rebooting" harassment prevention. The DOL issued new overtime exemption regulations and continues to pursue enforcement of wage-and-hour laws and to prioritize the elimination of independent contractor misclassifications. The NLRB has continued to scrutinize company handbook policies. The Defend Trade Secrets Act was enacted, severance agreements came under fire by the SEC, workplace violence continues to escalate, and medical marijuana was approved by voter initiative in Florida. Court decisions also continue to impact employers in a variety of ways. Changes in the employment law arena are occurring at a rapid pace!

To help employers stay ahead of the curve in 2017, Attorney Jessica M. Farrelly will present an overview of the most recent and significant enforcement activity, court decisions and legislative changes in federal and Florida employment law during the past year.

Who should attend?

  • Executives
  • Managers
  • In-House Counsel
  • Human Resources Professionals

Details Regarding This COMPLIMENTARY Seminar:

DATE: January 27, 2017
TIME: 8:30 a.m. - 10:00 a.m.
2033 Main Street, Suite 600
Sarasota, FL 34237

To ensure enough space is available, please pre-register on or before January 20, 2017 by contacting Toni Hashem at or (941) 366-8100. 

©2016 Jessica M. Farrelly, Esq. • Icard Merrill. This may be considered advertising under the rules of the Florida Bar. This information is general in nature and is not offered, and should not be construed, as legal advice with respect to any specific matter.