All entries for May 2017

Wife Sells Diamond to Pay Attorneys' Fees in Divorce

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.  


The No Mercy Eviction Rule for Tenants

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. 


King Solomon For Modern Times - Partitioning the Family Dog

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.  


Proposal for Settlement, an Elimination of the "Good Faith" Requirement?

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. Sharkey928 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. 


Free House in Foreclosure? A Reversal of Fortune in One Case

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. 


Icard Merrill attorneys sponsor and attend FAWL's "A Morning with the Judges" Event

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. 

 

Sponsor SignIcard Merrill Attorneys attend A Morning With the Judges


UPDATE: Appeal Of Department Of Labor's Overtime Rule Delayed.... Again

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.  

* * * * * * *

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.