Month: November 2015

Articles and information on commercial litigation, business disputes, real estate litigation. Call (954) 440-0901, (561) 406-0440, (813) 510-5800

Florida’s Worthless Check Statute Allows for Triple Damages

November 24, 2015

By: Justin C. Carlin

Businesses who do not require advanced payment for services frequently find themselves without any kind of payment for their services.  In more unusual circumstances,

A person making a payment with a check.
A person making a payment with a check.

they encounter a client or customer who tenders a worthless check for services performed or, in an effort to defraud the business, stops payment on a check after services are performed.  As infuriating as it may be to not get paid and have to pay bank service charges because of a non-paying client, Florida Statutes Section 68.065 (known as Florida’s Worthless Check Statute) provides a remedy for businesses or individuals who are the recipients of bad checks, drafts or orders of payment.  It reads: READ MORE

Florida’s Fraudulent Lien Statute

November 17, 2015

By: Justin C. Carlin

In the Florida construction law context, contractors, subcontractors, and sub-subcontractors sometimes assert liens on property for (i) amounts that exceed that which is actually owed by a property owner, or (ii) work that was not actually performed on the property.  When either of such events occurs, a court may find that the lien is fraudulent, declare that the lien unenforceable, and award actual and punitive damages to any person who is damaged by the fraudulent lien.

Concept For Corruption, Bankruptcy Court, Bail, Crime, Bribing, Fraud, Auction Bidding. Judges or Auctioneer Gavel, Soundboard And Bundle Of Dollar Cash On The Rough Wooden Textured Table Background.
Concept For Corruption, Bankruptcy Court, Bail, Crime, Bribing, Fraud, Auction Bidding. Judges or Auctioneer Gavel, Soundboard And Bundle Of Dollar Cash On The Rough Wooden Textured Table Background.

Section 713.31(2)(a) of the Florida Statutes defines a fraudulent lien as a lien containing:

  •  A willful exaggeration as to the amount of the claim; or
  •  A claim for work not performed upon the property upon which the lienor seeks to impress its lien; or
  •  A claim for materials not furnished for the property upon which the lienor seeks to impress it lien; or
  •  A claim that is compiled “with such willful and gross negligence as to amount to a willful exaggeration.”

READ MORE

When Property Owners Can’t Agree on How Property Is To Be Used

November 10, 2015

By: Justin C. Carlin

At some point in their lives, many people will purchase a piece of real property with another person (or several other people), perhaps as part of a business venture, or perhaps to establish a marital residence.  On other occasions, a person inherits a partial interest in property along with his or her family members.  Many of these arrangements turn out badly because the interested parties disagree over how the property should be used.  Disputes arise, for example, regarding who should be permitted to live in the property and whether the property should be sold. READ MORE

Defamation—A Common (But Somewhat Confusing) Business Tort

November 3, 2015

By: Justin C. Carlin

One of the most common types of business torts in Florida is the tort of defamation, which consists of the following elements:

1. A false and defamatory statement concerning another;

2. An unprivileged publication to a third-party;

3. Fault amounting at least to negligence on the part of the publisher; and

4. Either actionability of the statement irrespective of special harm the existence of special harm caused by the publication.

See Rapp v. Jews for Jesus, Inc., 944 So. 2d 460- 464-65 (Fla. 4th DCA 2006).

SLANDERDespite being loaded with legal terms of art (e.g., “unprivileged,” “publication,” “negligence,” “actionability,” and “special harm”), the cause of action is actually fairly straightforward.  Indeed, at least one court has explained the concept in rather simple terms: “To establish a cause of action for defamation, the plaintiff must show that: (1) the defendant published a false statement about the plaintiff, (2) to a third-party, and (3) the falsity of the statement caused injury to the plaintiff.”  Mile Marker, Inc. v. Petersen Publishing, LLC, 811 So. 2d 841, 845 (Fla. 4th DCA 2002).  There is a special Chapter in the Florida Statutes (Ch. 770) that governs defamation claims against newspapers that publish false information in writing, but that Chapter does not apply to causes of action against private individuals in business litigation cases.  Rather, within the business context, a cause of action for defamation is typically governed by common law—i.e., so-called “judge-made” law beginning with court decisions rendered in the country of England during the 15th Century and continuing through the date of this blog post in a variety of jurisdictions, including the State of Florida.  As a consequence, some of the law and the terminology relating to defamation may seem a bit archaic.  Yet, as a practical matter, the law is actually quite functional, as evidenced by the distinction between defamation “per se” and defamation “per quod.” READ MORE