All entries tagged with “business and consumer protection”

"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.

 


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. 


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. 


Ruminations on a Default Notice and Witness Foundation

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. 

 


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.  


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. 


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. 


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. 


Significant Blow to Borrowers, Courts Expand Statute of Limitations for Foreclosures

A crucial blow to wayward borrowers and a life raft for inattentive banks and foreclosure counsel were handed out simultaneously by the Florida Supreme Court recently in Bartram v. U.S. Bank, N.A., 41 Fla. L. Weekly S493 (Fla. November 3, 2016).   This case will likely have far-reaching impact in the foreclosure world and likely represents a death-knell for the “free house” dream held by many borrowers and defense attorneys. 

Before the Court in Bartram was the issue of statute of limitations in a foreclosure action and the impact of acceleration letters from lenders.  The essence of the issue could be summarized by stating that banks are generally owed payments on a monthly basis, but when buyers default, banks often “accelerate” the note, meaning that all remaining payments come due as of the month of the acceleration notice.  

The argument by defense attorneys, therefore, has long been that, by the mechanism of the acceleration notice, no more payments are due after the date of acceleration and rather one lump final payment was due.  The issue arose for lenders when they then either failed to bring an action within the five-year statute of limitations following that acceleration or the bank’s action was so mis-prosecuted that it ended up being dismissed or adjudicated against the bank (meaning that the court determined that the case brought on that accelerated obligation was found in favor of the borrower).  Under either scenario, the argument went; the bank had no new defaulted obligation to complain of and could no longer bring a successful case against the homeowner.

However, the Bartram decision appears to have firmly slammed shut the door on that argument.  Id.  The Court held (in what could conceivably be called a bit of tortured logic) that a dismissal by the bank of its action effectively acts as a “revocation” of the acceleration clause and returns the parties to their pre-foreclosure positions (i.e., monthly payments again due).  Id.  This allows the bank to bring a new action on payments missed post-acceleration.

Curiously, the Court stated that this artificial “revocation” mechanism may not be allowed if there is an express term to the contrary in the parties’ note/mortgage (a term that has never likely been seen in any mortgage or note).  What is also curious is how the Court seemed to ignore entirely the fact that acceleration notices are often sent in advance of a foreclosure action and are not a part of the action itself (raising the question of how far “pre-foreclosure” the parties are actually being returned—potentially months or maybe longer?).  Also curiously, the Court was silent on whether the borrowers could then resume making payments on the newly re-instated monthly obligation (hint: the banks won’t allow that). 

This case likely represents an ugly, but potentially necessary “bail-out” for banks and their attorneys. The logic and legal basis for the ruling is fairly questionable. Yet, it often happens that banks and the massive foreclosure-focused legal firms serving them are so inattentive that cases languish for months or years and are often dismissed or not brought in a timely manner. 

Therefore, allowing banks a perpetual ‘do-over’ on bringing foreclosure cases probably reaches the correct result; homes that banks lent a lot of good money to buy are returned to the banks once the borrowers have long since stopped paying for them.  It would be arguably a more logical result to have homes left in the hands of borrowers if banks and their attorneys botch the great many opportunities they have to properly foreclose, but it would not necessarily be the just result.  In Bartram, the court appears to have recognized the just result and simply stretched (tortured) the law to achieve it, potentially sacrificing logic to get there.  

If your home is in foreclosure, or you are a lender seeking a law firm that will actively protect your rights, contact the foreclosure attorneys at Icard Merrill today. 


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. 


Significant Ruling on Offer of Judgment and Strict Construction

A potentially landmark ruling was issued recently on the issue of the strictness of construction of offers of judgment and/or proposals for settlement under Florida Statutes § 768.79 and Florida Rule of Civil Procedure 1.442.  Though, perhaps the ruling itself further makes murkier the already tricky offer of judgment waters. 

Previous to the certified conflict between the First District in Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So. 3d 242 (Fla. 1st DCA 2015) and the Fourth District in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003), as discussed in Kuhajda v. Borden Dairy Co., 41 Fla. L. Weekly S471 (Fla. October 20, 2016), the landscape was clear, if not laden with traps for prospective offerees. 

The previous clarity was lent by the Supreme Court of Florida in Diamond Aircraft Industries, Inc. v. Horowitch, where the Court made it clear (seemingly) that any deficiency—even if only a technicality and even (again, seemingly) despite the relative irrelevance of the deficiency to the action—would render the offer invalid.  107 So. 3d 362 (Fla. 2013).  For instance, under the holdings which were embossed by Horowitch, even the arguable deficiency of failure to mention attorneys’ fees in an offer where no attorneys’ fees have been sought in the case renders the offer invalid (e.g., Borden Dairy Co. of Alabama, LLC v. Kuhajda).  

To show even more the “strictness” of interpretation afforded before Bennett, courts had invalidated offers on the basis of failure to state both whether attorneys’ fees were included in the offer and whether they were sought in the claim (i.e., simply stating one or the other would not suffice).  Deer Valley Realty, Inc. v. SB Hotel Assocs. LLC, 190 So. 3d 203, 205 (Fla. 4th DCA 2016).

However, the Court recently held in Kuhajda v. Borden Dairy Co. that an offer is not invalid simply because it fails to address whether the proposal includes fees and whether the fees were sought in the action if the action did not, in fact, seek attorneys’ fees as part of the claims therein.  41 Fla. L. Weekly S471 (Fla. October 20, 2016).  It would have been arguably a major departure and loosening of the “strict” standard for interpretation of the statute and rule to simply state that the offer in question need not address whether attorneys’ fees were included in the offer if it stated that fees were not sought in the case.  However, to state that neither was required seems to fly fully and firmly in the face of the long-held (and what could fairly be described as ‘hyper-technical’) strict construction mantra used to strike down innumerable offers on what often amounted to insubstantial technical deficiencies. 

It will be interesting to track how far district courts are willing to go in loosening standards under § 768.79 and Rule 1.442 following Kuhajda.  Offers of judgment now potentially move from the realm of clear law with many known traps, to unclear law and unknown traps.  Such rulings often keep litigators very busy in the time after reconsidering their position in cases where offers of judgment are in play and remind litigants that the expertise of an experienced litigation attorney is more valuable now than ever.   If you have questions about your case or need help in a dispute, turn to the trusted 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

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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... More »


Graduate Students are Employees Under FLSA

A recent decision by the National Labor Relations Board opens up an new group of covered employees who were until recently treated more as volunteers or trainees rather than traditional employers. ... More »


Unclean Hands and Fraudulent Mortgage Loan Applications

Borrowers facing foreclosure are often scared, confused, and under extreme stress.  The dream of the modern American family—ownership of a home—is in jeopardy for them.  Some borrowers... More »


Worker's Compensation Statutory Provision on Fees Ruled Unconstitutional

A recent ruling by the First District Court of Appeals in Florida provides a bit of a novelty in jurisprudence; where a statute is declared unconstitutional.  Asked to determine if Sections 440.105... More »


Grievous Errors Continue in Foreclosure "Cattle Calls"

Anyone that has been to a foreclosure hearing or trial docket in the last five years or more will understand the obvious implications of those colloquially-termed "cattle call" dockets.  A room filled... More »


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.). ... More »