Blogs & Resources

In Florida, recovery of attorneys’ fees in eminent domain and inverse condemnation proceedings is governed by Sections 73.091 and 73.092 of the Florida Statutes. Section 73.092 provides a mechanism for determining an award of attorney fees, based on the “benefits achieved for the client.” But, what if the state agency/condemning authority excessively litigated the case, such that the formulaic computation under that statute was unfair to the property owner? A recent Florida Supreme Court case addressed this issue. Joseph B. Doerr Trust v. Central Florida Expressway Authority.

Whether due to economic hardships, mismanagement, unforeseen circumstances, or even fraud and breach of fiduciary duty, a condo or homeowners association may find itself in desperate need of help.  Additionally, properties that have been neglected may also be running afoul of local code compliance regulations or may be so far […]

For both client and attorney, there is nothing better than a sweet victory in litigation. However, this victory may be bittersweet if there is no recovery of attorneys’ fees. This blog post is one out of a series of blog posts that will discuss the recovery of attorneys’ fees and issues related to recovery. Specifically, this blog post will discuss contractual entitlement to attorneys’ fees.

Does a party in a civil dispute have the right to raise the Fifth Amendment Privilege against self-incrimination? Yes. De Lisi v. Bankers Ins. Co., 436 So.2d 1099 (Fla. 4th DCA 1983). Does the privilege extend to production of documents or just testimony? The privilege only extends to the production of documents unless the production itself is testimonial in nature. Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980) (“It then held that while the Fifth Amendment privilege against self-incrimination affords no protection to the contents of previously prepared documents, it does protect a person from producing documents under subpoena where the compelled production would amount to a forced testimonial communication which would be incriminating.”); see also, Fisher v. United States, 96 S. Ct. 1569 (1976). Whether the act of production is testimonial or not can be a complicated analysis. Essentially, if the government were to already know of the existence of documents and the location of such documents then production is not testimonial because the act of producing will not authenticate such documents or otherwise verify the existence of incriminating information.

A recent decision from the Fourth District Court of Appeals marks one of the first Florida appellate opinions holding that non-consumers may maintain a cause of action under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). Given the broad—and almost limitless—scope of “unfair or deceptive acts or practices in the conduct of any trade or business” prohibited by the act, some could foresee this decision as a precursor to FDUPTA claims being asserted by nearly every commercial litigant. Fortunately, the 4th DCA clarified the parameters on FDUPTA claims: while a claimant need not be a consumer to bring a FDUPTA claim, the claimant must still prove an injury or detriment to consumers to establish liability.

Lenders should be aware of a new Florida law, which requires lenders to provide existing tenants with at least thirty days to vacate the property after the foreclosure sale. Florida Statute § 83.561, titled “Termination of Rental Agreement Upon Foreclosure”, became effective on July 1, 2015. The law replaces a recently expired federal law titled Protecting Tenants at Foreclosure Act. As such, the implementation of this new Florida statute may come as no surprise to lenders. However, lenders should understand their statutory rights and responsibilities prior to evicting tenants after foreclosure.

I recently authored a blog on insurance coverage triggers for construction defects under Florida law. Insurance coverage for residential and commercial construction projects and understanding when coverage is implicated (triggered) is critical. In many cases, the applicable insurance policies are commercial general liability (CGL) policies. These policies are occurrence based and only provide for indemnification for property damage or personal injury that takes place during the policy period. In many situations, these CGL policies are the only possible avenue of recovery for damages.

Whether you are a potential plaintiff or a potential defendant, in a business dispute, determining whether punitive damages can be successfully added to the claim is an important part of the legal analysis and should be considered as early in the process as possible. If you are a potential plaintiff, it is important to analyze whether a claim for punitive damages can be added. Successfully adding a claim for punitive damages will likely increase the potential value of the claim. If you are a potential defendant, it is important to understand whether a plaintiff can successfully move to add a claim for punitive damages based upon the causes of action pled.

In a post-housing crisis economy, many homeowners, facing a plummet in home values, found themselves trapped in homes that are worth less than the amount they owe bank. Those homeowners have sought refuge in Chapter 7 bankruptcy proceedings, attempting to strip down the first mortgage and leaving many junior lienholders holding nothing but the bag—until now. In a big win for lenders, the U.S. Supreme Court recently ruled that a debtor in a Chapter 7 bankruptcy proceeding cannot void a second mortgage, when the debt owed on the first mortgage exceeds the current value of the collateral. See Bank of America, N.A. v. Caulkett, 135 S. Ct. 1995 (2015). The decision reverses an interpretation of the Bankruptcy Code in Florida bankruptcy courts—an interpretation further affirmed by the Eleventh Circuit—which allowed a Chapter 7 debtor to strip off and void a mortgage lien that is wholly underwater.

Occasionally we are engaged to represent members of a closely held company who are being “squeezed out” of their business. This comes in many forms, but one of the fact patterns I have seen is when an LLC management committee meeting is conducted without notice, without proper quorum or in a way that makes the decisions voidable by the oppressed member/shareholder. Specifically, Florida law prohibits amendment to the bylaws of a company that are purposefully sought to restrict a particular shareholder’s original and vested contract rights, in an operating/ shareholder’s agreement or otherwise.