Blogs & Resources

By

James O. Birr, III

Florida’s Civil Theft statute is an attractive claim to many plaintiffs because, if successful, it allows recovery of treble damages and attorney fees. See 772.11 of the Florida Statutes. Civil theft claims can be asserted by individuals and businesses alike, and are meant to create civil liability for criminal practices that are violations of 812.012-812.037 or 825.103(1) of the Florida Statutes (i.e. crimes of theft, robbery, and exploitation of elderly persons). A party contemplating asserting a civil theft claim under Florida law must be aware of its nuances and pleading a proof requirements before asserting the claim.

Statutory guidance for judicial dissolution under Florida’s Revised Limited Liability Company Act is found within Florida Statutes, § 605.0702.  Notably the section was revised in June of 2013 and became effective as of January 1, 2014.  The revised LLC act, commonly referred to as the “New LLC Act,” significantly modified […]

As counsel for lenders, I’ve been consulted with and required to opine on a wide range of topics throughout my career.  Specific to financial institutions, lawyers working in our banking law practice group have knowledge of not only the legal process for special assets workouts and the regulations governing commercial […]

Insurance plays a key role with any business and its business relations with others. While parties may have good intentions as to their respective insurance obligations, they may fail to procure the requisite insurance coverage under the parties’ contract. When this happens, the results can be irreparable.

Recent case-law from the Florida Supreme Court sheds new light on conflict of interest issues resulting from class action law-suits. Many times in class action law suits, class counsel will endeavor to reach a settlement which is fair to all members, while simultaneously and inadvertently receiving objections from a minority of the class members to the proposed settlement or other course of action. What is the counsel to do in that situation? Is there a conflict such that as of the objection, the interests of the majority are now directly adverse to the interest of the minority? The Third District Court of Appeals attempted to remedy the problem by applying a balancing test of interests commonly used by the Federal court systems. Upon review by the Florida Supreme Court, the court found that the balancing test was inappropriate and that the Florida Rules of Professional Conduct fully addressed this conflict of interest issue. The decision of Young v. Achenbauch exemplifies this.

Once a creditor obtains a judgment against a debtor, attempting to garnish the funds, accounts and assets of that debtor held by a third party is an extremely efficient and often successful means for collecting on that judgment. Chapter 77, Florida Statutes, governs garnishment actions within the State of Florida and provides for two main types of garnishment, which have been discussed in previous Blog posts. These include a Writ of Garnishment issued to a bank or financial institution and a Continuing Writ of Garnishment issued to a debtor’s employer. Although a judgment creditor can utilize both forms of garnishment in attempting to collect on the judgment, under Section 222.11, Florida Statutes, a debtor has the right to make claimed exemptions to garnishment actions when the debtor is head of household. However, such claimed exemptions may not preclude a creditor’s attempt at garnishment in certain situations. This Blog post discusses when claimed exemptions for head of household may not apply to garnishment actions when the debtor is an independent contractor, the sole owner of a corporation or an owner of a single member LLC.

Lenders and trade vendors often sagely require personal guarantees from the insiders of their debtor. In the event of debtor bankruptcy, a creditor may look to the insider-guarantor to satisfy the debt. The creditor’s ability to be made whole, then, is directly related to the financial position of the insider-guarantor. There is a problem: the Deprizio doctrine can erode the insider-guarantor’s financial position. Under the doctrine, the bankruptcy Trustee may disgorge assets from the guarantor that could otherwise satisfy the debt. Luckily, there is a solution to the Deprizio problem: a carefully crafted guaranty agreement that waives the guarantor’s claim against the bankruptcy debtor. This blog post explains the problem and clarifies the solution.

In litigation, under the right set of facts and law, the losing party is responsible for the attorney’s fees of the prevailing party. But, this determination is not always so simple. This post explores a recent decision where the litigants were entitled to fees under the contract, but fees were not plead in the answer and the case was voluntarily dismissed. Specifically, Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014) clarifies recovery of attorney’s fees when they are awardable but not plead by a defendant in a dismissed lawsuit.

There are many claims available to oppressed members of Florida Limited Liability Companies (“LLC’s”) whose business partners misappropriate assets through unlawful distributions. This Blog post focuses on determining whether actions in making improper distributions by majority members or managers of Florida LLC’s constitute breaches of common law fiduciary duties owed to minority interest holders.

When an employer seeks to enforce its non-competition agreement against its former employee, one of the most common defenses raised by the employee is that the employer failed to compensate the employee under the terms of the contract. The defense of non-payment is often enough to hamper the employer’s efforts to enforce its rights with a temporary injunction, which requires the employer to demonstrate its likelihood of success on the merits. So how can an employer get its temporary injunction now and fight the “non-payment” battle later? It all starts with contract drafting: if the non-compete provision is expressly independent of the remaining terms and conditions, non-payment of employee compensation is no defense to its enforcement. This Blog post analyzes a recent non-compete case is the latest Florida ruling to address the importance of drafting independent restrictive covenants.