All entries filed under “Business and Consumer Law”

"Taylor-Made" Arbitration - Taylor Morrison Arbitration clause unenforceable, violates public policy

National homebuilder powerhouse Taylor Morrison suffered a setback on its attempts to force buyers into arbitration when they allege building code violations.  In the Second District Court of Appeals, the case of Reginald Anderson v. Taylor Morrison of Fla., Inc., 42 Fla. L. Weekly D1232 (Fla. 2d DCA May 31, 2017), dealt with the builder's attempts to enforce an arbitration agreement contained in its form Purchase and Sale Agreement against the buyers who were alleging defects in the home they purchased.

The Court determined that the Taylor Morrison contract attempted to limit or circumvent statutory protections for the buyers under Florida law, so the contract itself violated public policy and was not enforceable against the buyers alleging the construction defects.  In reaching this conclusion, the Second District stated that a contract violates public policy where it "defeats the remedial purpose of a statute or prohibits the plaintiff from obtaining meaningful relief under the statutory scheme." Anderson v. Taylor Morrison of Fla., Inc., 42 Fla. L. Weekly D1232. 

It appears, based on this ruling, that Taylor Morrison will have to go back to the figurative drawing board in order to find a way around statutory protections for buyers of its homes. 

If you have a question about or a dispute with a builder regarding a home or other purchase and sale contract, or are experiencing construction defects, the experienced construction litigation attorneys at Icard Merrill may be able to help you. 

 

Wedding Crashers - Damage and Claim Types in a Contract Action

An interesting case fact pattern helps answer a common question that clients have; "can I get pain and suffering or punitive damages in a contract case?"  In the case of Deauville Hotel Mgmt., LLC v. Ward, 42 Fla. L. Weekly D1219 (Fla. 3d DCA May 31, 2017), the Third District Court of Appeals gives a nice illustration of the damage types (and the principles underlying those types) available in a contract case.

In Deauville Hotel Mgmt., LLC v. Ward, the plaintiffs had contracted to hold their wedding reception in the defendant hotel's ballroom, but found out just hours before their wedding that the ballroom was no longer available (due to a shut down for building code violations) and the couple was forced to hold their reception for 190 people in the hotel's lobby (where other hotel patrons walked through--some in their swimsuits--and participated in the festivities).  The couple, mortified, brought the lawsuit for various types of damages, including punitive damages for intentional infliction of emotional distress (a rare exception to the Florida rule that there must be a physical touching in order to collect for purely emotional damages).   The jury actually found that the hotel had committed conduct that was so extreme and outrageous as to shock the conscience--the standard for a successful intentional infliction of emotional distress claim. 

The Third District, however, reversed on that point and nullified the emotional distress verdict.  The Court cited two cases where outrageous conduct--one in which a pastor was called a 'thief' in front of his congregation and one in which an employee was subjected to racial slurs and threats of termination--was found not outrageous enough to trigger emotional distress damages. 

Further, the Court reduced the amount of economic damages awarded to the plaintiffs on the basis that they did actually get to use portions of the "flowers, linens, photography, videography, entertainment, transportation, and cake" at the location where the wedding was held (even though they were not available for the reception) and to award them the cost as well as the use of the items would have been duplicative. 

In all, the plaintiffs likely felt emotionally abused at the hands of the appellate court following this decision, but the legal underpinnings of the decision were soundly based in the applicable law and parties curious about the way damages work in contract cases can get a helpful primer by reviewing the Court's opinion.

If you have a contract dispute or a question about your rights, reach out to one of the litigation attorneys at Icard Merrill today.

 


Attorney-client privilege could shield law firms from being forced to reveal whether they steer clients to medical providers that unreasonably (or perhaps fraudulently) inflate medical bills for injury cases

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.  


Court Upholds 'Home Field Advantage' for Cable Companies in the Battle Against Satellite TV

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. 


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.  


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. 


The Corporate Shell Game - Enforcing Judgments Against Successor Entities

One challenge facing holders of judgments against a company that often arises is that of successor entities.  Imagine holding a judgment against a company called “Bob’s Widgets” only to see that company dissolved with no assets remaining and then only to see a company called “Bobby’s Widgets” open in the same space, with the same equipment and owners, and selling the same goods to the same customers.  The frustration caused by this ‘shell game’ can overwhelm litigants and attorneys alike.

A recent decision made clear that parties are allowed to seek recovery against a successor, alter-ego, or continuation of business entity either during or after judgment. Oceanside Plaza Condo. Ass'n v. Foam King Indus., No. 3D15-2449, 2016 Fla. App. LEXIS 16667, at *7 (3d DCA Nov. 9, 2016).  The holding of this case and its predecessors allows claimants to pursue a company that is essentially a business entity continuing the same operations as either a successor or alter-ego as part of the first judgment or after that judgment is entered.  Id.

This flexibility helps ensure the proper defendants are included in a case and also helps preserve both judicial economy (read: not wasting the court’s time) as well as the time and monetary resources of the aggrieved party. 

If you have questions about your rights or you believe a company is playing a ‘shell game’ to avoid your valid claims, reach out to the litigation attorneys of Icard Merrill for a consultation. 


Sworn Witness Statements - Work Product Protection?

An interesting note for litigation practitioners was recently discussed in the Fifth District of Florida when the District Court of Appeals was asked to decide whether sworn statements of witnesses taken by counsel for one of the parties are entitled to privilege under the work product doctrine. 

The work-product privilege, which generally protects the notes, written thoughts and expressions of counsel in anticipation of litigation, may not be generally thought of as a form of protection for statements made by third parties.  In this way, the Selton v. Nelson, serves as a great reminder that sworn statements prepared by counsel for witnesses in a dispute are afforded work-product protection from discovery “absent rare and exceptional circumstances.” 41 Fla. L. Weekly D2337 (Fla. 5th DCA October 14, 2016).  Stated differently, the court must determine whether the party seeking production would be unable to secure the equivalent without undue hardship. Id.

This case also serves as a reminder that there are many niche and unusual aspects of the law and litigation facing parties to a business dispute and that the best defense against unknowingly running afoul of either the law or the party’s rights is to seek the help of an experienced litigation attorney with knowledge of the pitfalls awaiting the unwary. 

If you need help with your business dispute or have questions about your rights, reach out to the business law and litigation attorneys of Icard Merrill today. 


States Now Fighting Back on FLSA Overtime Changes

In the United States District Court for the Eastern District of Texas (in Civil Action No. 4:16-CV-00731), twenty-one states recently brought a challenge and motion for temporary injuction seeking to prevent the implementation of a series of overtime law changes announced by the Department of Labor and which are set to go into effect on December 1, 2016. 

In this case, Federal District Judge Mazzant is being asked by the states to forestall that implementation pending further challenge of a provision of the Department of Labor’s Final Rule that provides for an automatic updating adjustment mechanism whereby the minimum salary for executives to continue to be qualified for overtime exemption increases every three years (the first of which is set to take place January 1, 2020. 

The States argument, in essense, is that the DOL’s policy changes attempt to unlawfully coerce the states and the businesses in those states to adopt certain wage and hour policies and to make certain choices in that regard that will disrupt (and interfere with) the States’ right to set their own policies in employee wage and hour law.

This case figures to be only one step in what is likely to be a broad salvo by states pushing back against the federal government attempting to set national wage and hour policies (and, some may argue, widespread social engineering).

If you have questions about how the new Department of Labor wage and hour rules will affect your business or you personally, contact our business and employment attorneys today.

UPDATE:  The Texas District Court Judge issued on November 22, 2016 an order granting the states’ Emergency Injunction against the Department of Labor overtime changes, likely triggering increased and more heated litigation on the issue in the coming months.  http://www.txed.uscourts.gov/d/26042


Lower Court Compels Arbitration Based on Pamphlet Mailer

Arbitration clauses exist in plentitude all around us in most people’s everyday lives—they are in your contract with your builder, enclosed with a great many products you buy, and even in your workplace—but they generally go unnoticed unless and until something goes awry.  In those instances, people are often surprised to find that they have (usually without any real knowledge or consideration) waived their right to have a dispute heard before a judge or jury.  Instead, they are forced to take their case before a private arbitrator (in many-but not all-instances that person is an attorney in the field) and potentially pay to have their case heard.

Compelling arbitration has long been required where an arbitration agreement is found to be valid, to concern the issue presented, and to have not been waived.  This is outlined in the recent case of  All-S. Subcontractors, Inc. v. Amerigas Propane, Inc., and codified in Florida under Chapter 682.   41 Fla. L. Weekly D1859 (Fla. 1st DCA August 11, 2016).  In All-S. Subcontractors, Inc., the seller of propane affixed a “Terms and Conditions” flyer to its invoices which contained an arbitration provision.  It appears under the facts of the case that customers were neither expected to sign nor specifically told of this provision other than by attachment to a propane invoice.

Later, when a class action was sought by consumers against the propane seller, the seller attempted to force the parties to arbitrate based on that “Terms and Conditions” pamphlet attached to invoices.  The lower court agreed, but was reversed on appeal by the 1st DCA, which found that the class action initially rested on an invoice from several years prior to the first time the “Terms and Conditions” were ever attached to invoices.

For consumers, the scary part of this case’s holding is the possibility by implication that, had the invoices in question been from after the period of time when the “Terms and Conditions” pamphlet started being attached to invoices, the dispute could have been forced into arbitration even absent any proof of actual knowledge by the consumers that they had waived their right to a judge or jury hearing their dispute. 

This lesson is an old one and serves many people well—read your contracts and ensure you both understand and agree to the terms in them before you sign (or take delivery of the goods in instances such as that of the All-S. Subcontractors, Inc. case wherein no one was required to sign the agreement). 

If you have questions about a contract or are facing arbitration, consult with the experienced litigators of Icard Merrill today. 


Right to Gender Reassignment Treatment Claimed, Declared Medically Necessary

Those looking for further evidence of the changing tides of inclusion, gender and trans-gender equal opportunity, and broadening of the social consciousness can look no further than a recent brief the Equal Employment Opportunity Commission (EEOC) sought to file in aid of the American Civil Liberties Union (ACLU) in the case of exclusions in the employer’s employee health plan pertaining to “treatment, drugs, and services for or leading to ‘sex transformation surgery.’”  The brief can be found here:  https://www.aclu.org/legal-document/robinson-v-dignity-health-eeoc-amicus-brief

In what may raise eyebrows in many parts of the country, the EEOC supports claims in the complaint filed by the putative transgender employee that gender dysphoria is “a ‘serious medical condition’” and that “[u]nder ‘widely accepted standards of care,” the treatment (inclusive of “hormone therapy, sex reassignment surgery, and ‘other medical services that align individuals’ bodies with their gender identities’”) is “medically necessary.” 

In the brief, the EEOC explains that “discrimination against transgender individuals because of their gender non-conformity is discrimination on the basis of sex.” This represents a continued expansion in recent years by the EEOC to include sexual orientation, sexual conformity, and similar issues under the umbrella of sex and/or gender discrimination. 

This expansion has in some instances run afoul of judicial efforts to maintain a boundary between the two under Federal Title VII legislation, recently in a case before the U.S. Court of Appeals for the Seventh Circuit. Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016). 

As some long-held boundaries and lines between sexual orientation and identification continue to blur and fade, these issues will likely present more challenges for both employees and employers to ensure that the rights of people under the law are respected while respecting the rights of businesses to operate efficiently and in a lawful manner without undue governmental oversight.  For help navigating these challenges on either side of the equation, contact the attorneys of Icard Merrill today. 


Update on 57.105 Motions for Sanctions Based on Frivolous Claim

Two recent cases (both in the 11th Judicial Circuit) illustrate points of emphasis in Frivolous Claim (Florida Statutes 57.105) jurisprudence.  The first, SURF CONSULTANTS, INC., v. CINTRON, reveals that, so long as a colorable claim or good faith argument existed, the motion should not be granted.  The second, SUZANNE FERNANDEZ & ASSOCIATES, INC., v. STEPHEN E. TUNSTALL, LAW OFFICE, reminds us that the party seeking fees must comply strictly with notice requirements under the statute, or potentially even where good faith arguments were lacking, the offending party may not be liable for fees.  

If you are the victim of frivolous claims, consult with our talented litigation attorneys today and let us help you defend your rights. 


Failure to Timely Serve Defendants Can Lead to Dismissal

It can sometimes be challenging to find, much less serve defendants in a civil action.  Where some may consider a 120-day time period under the Rules of Civil Procedure sufficient within which to serve defendants, in many instances that proves to simply not be enough time. 

However, as a recent case illustrates, failure to ask for that additional time before the clock expires can have some unintended--and expensive--results.  As the County Court recently noted in Fia Card Servs. v. Brown, 2013 Fla. Cir. LEXIS 16617 (Fla. 13th Cir. Ct. Dec. 11, 2013), failure to serve a defendant or to request and obtain an extension within 120 days can (and does) result in dismissal of the lawsuit.  If the plaintiff suffering a dismissal was close to the limitation period, such a dismissal could result in the person losing their claim permanently.  

Talk to one of our litigation attorneys today to help ensure your rights are protected. 


Businesses also enjoy protections under FDUTPA

A recently decided Third District case illustrates some of the protections available to non-consumers under Florida’s Deceptive and Unfair Trade Practices Act (Fla. Stat. §501.201 et seq.).  As the court noted in Off Lease Only, Inc. v. LeJeune Auto Wholesale, Inc., 41 Fla. L. Weekly D467 (Fla. 3d DCA Feb. 24, 2016), reh'g denied (Mar. 23, 2016), a business can bring to light and get judicial help to remedy the deceptive and unfair trade practices of their competitors, as well as seek attorneys’ fees for prevailing in such an action.

In this particular instance, Off Lease alleged dastardly schemes by LeJeune Auto Wholesale and sought monetary and injunctive relief as a result.  The Third DCA found that, while LeJeune was correct that Off Lease was not entitled to monetary relief, injunctive relief was still a remedy available to anyone—not just consumers—under FDUTPA after the legislature’s 2001 amendment to the law which changed the terms pertaining to injunctive relief and attorneys’ fees from “consumer” to “person” (of which a legal entity is considered one). 

The court also found that injunctive relief was appropriate under FDUTPA for future violations even if the offending entity voluntarily ceased the complained-of activity prior to the action where the complaining party can show such future violations were likely to occur.

This ruling provides illustration of potentially helpful news for businesses that are aware of conduct of other businesses that have the likelihood of hurting the public through fraud, deceit, or other deceptive and unfair practices.  If you or your business is in need of an attorney to help determine your rights and options in a deceptive and unfair trade practices case, consult with Icard Merrill’s experienced business litigation team today.