All entries for May 2016

Enforcement of Non-Competition Agreement Update

As the pendulum of non-competition agreement enforcement seemingly swings back and forth, we recently got an update on the arc of that sweep from the Third District Court of Appeals. 

In Telemundo Media, LLC v. Mintz et al., the Third DCA reversed a trial court's refusal to enter a temporary injunction against a Spanish television executive  who had a non-compete for a period of six months that spanned the entire United States.  Using somewhat standard boilerplate terminology, the Court found that the defendant had agreed his employer would be damaged irrevocably by his departure and subsequent employment with a competitor. 

Therefore, the Court found injunctive relief appropriate and reversed the trial court's refusal to enter one.   Thus, we see again that the best means of protecting yourself from an overbearing non-compete agreement is by disagreeing with the language at the time or refusing to sign in the first place.  

Employers in some cases sacrifice a great deal or put substantial assets into key employees, so having that person leave and take their talents (and, in some cases, secrets) to another employer in the marketplace can have a substantial impact.  In those cases, non-competes are both necessary and valuable.  However, it remains up to the employee whether they want to either negotiate the terms of the agreement or refuse to sign and roll the dice on a possible termination of employment. 

Speak to one of our employment attorneys today to find out your rights and options.

Failure to Provide Gluten Free Food--a Civil Rights Violation?

There are many who feel that our penal code prisoners are afforded too many luxuries and treatment that often is superior to many hard working families.  Those people will likely be none too pleased with the April 29, 2016 decision in Toney v. Corizon Heath, Inc. et al.  

The First DCA found in Toney that the failure to provide gluten-free foods and meals to prisoners with dietary concerns could be considered "deliberate indifference to a serious medical need" and, on that basis, allowed a Section 1983 (civil rights violation) claim to move forward both against the facility and the doctors and nurse assigned to that facility. 

It is mind-boggling to most regular people to imagine that inmates could be considered to have potentially had their civil rights violated by providing them with a substance that nearly everyone consumed  for decades without even realizing it was there or suffering serious issue, but this is another instance where the law struggles to find a common sense end point for personal liberties.  In a world where the persons being deprived of their civil liberties as a result and consequence for committing serious crimes against the public at large are entitled to a better quality meal than those working for minimum wage and forming the backbone of the country, sometimes finding a little common sense can seem an insurmountable challenge.  

Equitable Distribution Issues Lead to Unfavorable Result for Wife

In the April 20, 2016 decision rendered by the Second DCA on a Hillsborough County Case, Thomas-Nance v. Marcio Nance, 189 So. 3d 1040, 1041 (Fla. 2d DCA 2016), the Court cast light on an issue that faces many people in divorce actions--inconsistent operation of the law affecting distribution of assets.  

In this case, the wife and husband shared a marital home that had about $50,000 in equity at the time of the divorce.  Since the husband had inherited the property, he wanted to keep living in it.  Neither party had the ability to buy the other out of the loan, so the judge simply ordered the wife to turn over her ownership interest in the home within 30 days (via quit claim deed) and allowed the husband to himself set what he thought he could pay per month on the $25,000 in equity on the home that the wife was entitled to.  

With no further inquiry, the husband decided $100 per month was all he could pay and the magistrate entered a recommended order and the court entered an order to that effect.  In essence the husband had almost 21 years to repay the wife with no interest owed on that sum.  The appellate court rightly decided that the wife had been deprived of her current interest in the home and did not adequately address how she would be paid or protected in a reasonable manner.  

Even when parties believe they have resolved nearly all issues between themselves--as the parties here did--it still is a great idea for each of them to talk it over with an attorney who represents their interests and who can help guide them around the unseen hurdles and potentially bad results at a hearing where the parties are not adequately prepared or represented.  

Talk to our family law attorneys today if you have questions about a divorce or other family law issues. 

No Felonies Allowed for Personal Representatives of an Estate

A recent appellate decision from the Fourth DCA on a case out of Broward County (In RE Estate of Sharonda Renae Butler) reminds us of the small details that can sometimes get forgotten when preparing an estate and which can cause significant issues when it comes time to manage an estate.  

Some may assume it to be common sense that a person would not want to appoint a person that has been convicted of a felony to manage estate assets.  However, sometimes family circumstances dictate otherwise and, as the Fourth DCA makes clear, there is little wiggle room no matter how long before the appointment the felony was adjudicated and no matter the type of offense.  

Even where a felony conviction might not bear any indication of untrustworthiness on its own, any family member with a stain in their past will be unable to serve as a decedent's personal representative.  While this rule may not affect many considering estate planning, it is indicative of the many pitfalls that await the unwary who attempt to use simple "one size fits all" forms on the internet or borrowing the wills of friends or family to use as a form for their own.  

There are a great many ways an estate can end up bogged down in litigation or procedural issues.  Talk to a qualified trusts and estates attorney with Icard Merrill today and we can help you avoid issues like this.