All entries tagged with “sarasota business attorneys”

Technical requirements for fees under 57.105

A recent court decision took a page from the (perhaps now abandoned) book of hyper-technical requirements preceding the award of attorneys' fees in cases that has long been the purview of the Offer of Judgment/Proposal for Settlement statutory and rule scheme. 

In the case of Estimable v. Prophete, 42 Fla. L. Weekly D1312 (Fla. 4th DCA June 7, 2017), the Fourth District considered the technical prerequisites for awarding fees under the "frivolous claims" statute--S. 57.105, Florida Statutes.  In Estimable, the Court determined that, though the prevailing party had properly followed the statutory requirements of 57.105, it had failed to meet the technical requirements of Florida Rule of Judicial Administration 2.516 in that it had failed to include the language "SERVICE OF COURT DOCUMENT" followed by the case number in the subject line of the letter, did not include the name of the initial party and title of the document served in the body, and did not attach a copy of the document in PDF format (or a link to the document on the clerk's website).  Therefore, the Court determined sanctions were not appropriate and were not enforceable and reversed the trial court's order for attorneys' fees. 

This case stands as a reminder to practitioners that attorneys' fee awards without the prior agreement of the parties is still considered to be rendered in derogation of common law and will continue (at least in some statutory schemes) to be strictly construed by courts. 

If you have questions about a frivolous lawsuit claim or wish to find out your rights and risks in litigation, contact one of our experienced litigation attorneys today.


"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.

 


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. 


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). 


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.
LOCATION: ICARD, MERRILL, CULLIS, TIMM, FUREN & GINSBURG, P.A.
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 thashem@icardmerrill.com 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.


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. 


A Loophole in Proposals for Settlement in Joint and Several Liability Cases?

A fascinating practice point was revealed in a Florida Supreme Court ruling earlier this month relating to offers of judgment and proposals for settlement pursuant to Florida Statutes § 768.79 and Florida Rule of Civil Procedure 1.442 and the reasoning forming the framework of the Court’s analysis came from right here in the Second District. 

In the case of Anderson v. Hilton Hotels Corp., the Court agreed with the reasoning provided by the Second District in conflict with a ruling from the Fifth District in determining that offers of judgment to separate defendants against whom a joint and several judgment is rendered cannot be aggregated for purposes of denying the prevailing party’s motion for attorneys’ fees.  41 Fla. L. Weekly S500 (Fla. November 3, 2016).

This is an interesting clarification on the practical use of and strategy concerning offers of judgment.  For instance, similar to an example given by the Court, an offer to Defendant A could be very high (say, $300,000) and the offer to Defendant B could be quite low (say, $5,000), yet a judgment against both defendants in the amount of $20,000 would entitle the Plaintiff to fees against Defendant B.  Id.  Further, offers to Defendants A, B, and C in equal amounts of $100,000 would result in an entitlement to fees by the Plaintiff against all three Defendants if the judgment lists all three jointly and severally even on a judgment in the amount of only $126,000  (at least 25% greater than each respective offer). 

The Court’s ruling makes clear that the offer to a party and a judgment against that party (even if other parties are included in the judgment) are what triggers liability for fees—not some aggregation of offers and judgments.  As the Court notes, this is true regardless of what a jury verdict states as to apportionment of damages against various defendants so long as the final judgment applicable against any party is greater than the amount offered by at least 25%.  Id. at 22-23.

This provides practitioners with varied options for strategies in their civil actions and offers of judgment—to wit, the Court quotes these examples from the Second District’s opinion:

It is worth explaining that the plaintiff may have a logical, strategic reason to make such differentiated offers. It forces one defendant to settle. The plaintiff obtains money that can be used to further prosecute the lawsuit or which can be safeguarded from the risk of a future judgment if the defendants obtain the right to a judgment for their fees. The plaintiff can eliminate the defendant for whom the jury may have sympathy, or the defendant who may be on the brink of bankruptcy. If more than one lawyer is involved, the plaintiff can remove the defendant with the best lawyer. We doubt that  these are considerations addressed by the legislature when enacting these fee-shifting provisions, but they are logical considerations and we cannot rule that they are matters that a plaintiff's attorney should disregard when making a good faith offer to settle a case. . . .

Id., quoting Hess v. Walton, 898 So. 2d 1046 (Fla. 2d DCA 2005). 

As has been previously noted in this Blog, the offer of judgment rule and statute provide a significant challenge even for experienced practitioners and provide one excellent example for why lay persons should seek the help of a skilled attorney in disputes (as the old saying goes, you wouldn’t perform your own open heart surgery even if you have a pretty good idea how it is supposed to be done).

If you have questions about your rights in a dispute or future litigation, reach out to our skilled and experienced trial attorneys today at Icard Merrill.  


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

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. 


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.  A decision announced here: https://www.nlrb.gov/news-outreach/news-story/board-student-assistants-covered-nlra-0 makes clear that student assistants working at private colleges and universities (e.g., teaching assistants) are considered by the NLRB to be employees under Federal statutes, and are therefore entitled to all of the rights and protections of other employees.

This changes the dynamic potentially at many colleges and universities around the country and opens up possible avenues for claims against those universities for unpaid wages, rights to unionize, and potentially other rights never before generally considered applicable to student assistants. 

For employers in the private sector, this is another example of government agencies shining light on persons the employer may never have previously considered to be an employee.  Volunteers, interns, and trainees have long been the subject of scrutiny by the Department of Labor, the Internal Revenue Service, and the NLRB.   This decision simply opens the umbrella a little wider and raises doubt to the continued use of unpaid assistants in the academic realm.

Employers should take from this ruling the idea that the law can be a very complicated and, sometimes seemingly ever-shifting landscape and it is essential to have a partner as a business grows and changes (or even simply continues) in order to ensure compliance with the law and reduction of liability. 

If you have questions about your employees, independent contractors, or other business employment needs, speak to our well-trained and knowledgeable employment attorneys in any of Sarasota, Manatee, Lee, Charlotte, and surrounding counties.  


Isolated Rule Violation and Good Faith Error in Unemployment Claims

In another lesson to employers and human resources management, a recent decision once again highlights the importance of documentation when it comes to challenging unemployment compensation claims by employees purportedly terminated for cause.

The court in Williams v. City of Winter Haven, essentially provided employers with a mandate with respect to documentation, finding that “an isolated rule violation based on a good faith error in judgment does not amount to misconduct that would justify a refusal of benefits.”  41 Fla. L. Weekly D1657 (Fla. 2d DCA July 15, 2016).  This stems from the court’s interpretation of the term “misconduct” as defined by section 443.036(29), Florida Statutes.

Employers should read this pronouncement from the court to mean that an employer must show evidence (read: documents) that the employee undertook multiple violations of a known policy.  How do employers show this?  Employers should have proof in writing (by email or signature list) of receipt of a copy of a written policy, written evidence of coaching, corrective action, or other employee feedback for the problem employee showing how they were made aware of the policy and how their conduct was violating it, and at least one or more follow up documented corrective action discussions with the employee prior to termination.

Employers should keep in mind, “[t]he unemployment compensation statute must be liberally construed in favor of the claimant, and the “‘disqualification provisions, being remedial in nature, are to be narrowly construed.’” Id., quoting Davidson v. AAA Cooper Transp., 852 So. 2d 398, 401 (Fla. 3d DCA 2003).  The final takeaway from this notation by the court is that employers would be best served by implementing a thorough (and legally appropriate) interview and hiring process to screen applicants as well as a robust training and coaching program designed to bring in great applicants, train them for success, and retain them.   This will be far more cost effective (and operationally sound) than perfecting the challenge process for unemployment claims. 

For answers to your questions about unemployment compensation, sound human resources strategies under Florida and Federal law, or other questions about employment, speak Icard Merrill’s highly-qualified employment attorneys today.


Court Orders Should Be Taken Seriously: Indirect Criminal Contempt

For those that need a reminder (including attorneys) that court orders are no laughing matter and should be taken very seriously, look no further than the recent case of Haas v. State decided in the Second District.  196 So. 3d 515, 523 (Fla. 2d DCA 2016).  

In Haas, attorneys for one of the parties were alleged to have retained certain confidential files and to have filed certain confidential files without ensuring they were filed under seal.  This conduct arguably violated the trial court's order as to confidentiality, so the court set a hearing to investigate further.  The two attorneys at issue were found guilty of indirect criminal contempt for violating the court's order in filing documents without ensuring they were under seal and for retaining copies of certain documents.

The holding of the Second DCA, which reversed the finding of guilt as to indirect criminal contempt, included the following that; "[f]or a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order" . . . [a] trial court cannot make a finding of contempt for violation of a court order based upon its intent in issuing the order when the court's 'intent was not plainly expressed in the written order' . . . [i]n other words, a finding of contempt for violating a court order cannot be based upon something the order does not say."  (internal citations omitted).

It should be noted that the applicable standard for indirect criminal contempt--like any criminal matter--remains "beyond a reasonable doubt."  However, it was, for a time, likely an extremely unsettling prospect to have been found guilty of a crime of contempt and fined (the opposing attorney sought jail time for the two attorneys--raising serious questions about the working relationship between those two firms) before the judgment was overturned.  

This holding should also serve as notice to courts and to attorneys drafting proposed orders for the Court to ensure they are clear and explicit in the instructions and requirements that go into the order if compliance is to be ensured by potential contempt proceedings.

For those that take court orders lightly, beware that civil sanctions are not the only remedy out there for judges to ensure people take their proclimations seriously.


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 »


Good News on the Tax Front for Short Sales, Education, and IRA's

I recently watched the movie “Margin Call” starring Kevin Spacey and Jeremy Irons among others.  The movie takes place over a 24-hour period on Wall Street in 2008 and focuses on the beginning... 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 »