By: Justin C. Carlin
As a business litigator who depends on business litigation cases to sustain my business law practice, it may seem strange that I would write a blog post about how to avoid litigation. But my goal as a business attorney is to provide valuable services to people, so I’ve always made it a practice to assist my clients with avoiding litigation, even though I am a litigator. Here below are my top five strategies for avoiding business litigation in South Florida: READ MORE
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,
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
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.
Section 713.31(2)(a) of the Florida Statutes defines a fraudulent lien as a lien containing:
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
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).
Despite 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
By: Justin C. Carlin
Those who know me even moderately well know that I am a huge Florida State football fan. So, I was obviously very pleased to learn that FSU’s contract with its preeminent coach, Jimbo Fisher, was extended for five years. Upon reading the contract extension, however, I was somewhat dismayed that the buyout for his early termination of the contract was “a mere” $5 million in 2016, $3 million between 2017 and 2018, and $1 million before 2019.
While buyouts in the low millions are properly considered “real money,” it’s conceivable that a competing university (or even an NFL team) could, at some juncture, pay the buyout money and lure Jimbo Fisher away from FSU. If Jimbo Fisher is considered so valuable to FSU, and FSU is offering Jimbo such a high salary (in terms of pay, the contract places Jimbo in the top five of all college coaches), why wouldn’t FSU req
uire that the buyout be higher?
Rather than any inability of FSU to convince Coach Fisher to accept a higher buyout, I surmise that the buyout was mostly the result of Florida law, which prohibits so-called “penalty clauses” in contracts. Under Florida law,
parties to a contract may stipulate in advance to an amount to be paid or retained as liquidated damages in the event of a breach. The Florida Supreme Court has established a two-prong test to determine whether a liquidated damages provision will be stricken as a penalty clause. First, the damages consequent upon a breach must not be readily ascertainable. Second, the sum stipulated to be forfeited must not be so grossly disproportionate to any damages that might reasonably be expected to follow from a breach as to show that the parties could have intended only to induce full performance, rather than to liquidate their damages. READ MORE
By: Justin C. Carlin
It’s not often that the United States Supreme Court issues an opinion that has an effect on Florida mortgage foreclosure cases, but that’s exactly what the Court did today when it issued its opinion is Jesinoski v. Countrywide Home Loans, Inc. The case involved borrowers who rescinded their mortgage documents based on the lender’s failure to make certain disclosures under the federal Truth-in-Lending Act (“TILA”). After making payments on the mortgage for nearly three years, the borrowers sent notice to the lender of their rescission of the agreement. The issue in the case was whether the borrowers’ subsequent action for a declaratory judgment (by a court declaring the mortgage rescinded) was time-barred under TILA as having been brought more than four years after the execution of the mortgage. The Supreme Court found that the action was not time-barred, because the borrowers complied with the applicable limitations agreement set forth in TILA by providing notice of their recession within three years from the execution of the loan documents.
The Jesinoski case is notable, but not just because of its holding. First, the case illustrates the tremendous protection that TILA affords to Florida consumers. Under Florida law, a contract of any kind (whether a promissory note, a mortgage, or any other kind of contract) may usually not be rescinded after the parties have changed their positions as a result of the contract. Under TILA, however, a consumer in Florida appears to have the ability to rescind the contract years after the contract is entered into. READ MORE
By: Justin C. Carlin
Applying Florida law, the Eleventh Circuit Court of Appeals recently issued a decision (Kolodziej v. Mason, — F.3d —, 2014 WL 7180962) involving a fundamental question of contract law on somewhat interesting facts. A Texas criminal attorney (James Mason) handling a high-profile murder case asserted that it was impossible for his client to have committed certain murders in accordance with the prosecution’s suggested timeline. Specifically, he argued that his client would have had to get off a flight in Atlanta and travel to a La Quinta Hotel (several miles away) in only 28 minutes. Thus, Mason challenged the prosecution to prove that somebody could make that route and that he’d “pay them $1 million if they [could] do it.” Mason’s remarks were later featured in a television program on NBC, as follows: “I challenge anybody to show me—I’ll pay them $1 million if they can’t do it.”
A law student at the South Texas College of Law heard Mason’s (edited) remarks and interpreted the remarks as an offer to form a contract that could be accepted by performance. The law student from Texas went to Georgia and actually recorded himself traveling the route from the airport to La Quinta in less than 28 minutes. He then sent Mason a copy of the recording, along with the letter demanding payment of $1 million. Mason refused payment, and the law student sued both Mason and his law firm in federal court, alleging breach of contract. The trial court entered summary judgment in favor of Mason, and the law student appealed. READ MORE
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