Articles Posted in Florida Business Litigation

gavel-1238036-300x201A deposition is a discovery tool used by attorneys to compel witnesses and opposing parties to answer questions under oath.  Generally, they should be used for three purposes: to gather information, to gain admissions and to test out theories of the case.  As a former prosecutor and a business litigator, I have had the opportunity to witness attorneys who were very skilled at taking depositions, but most were not.  When an attorney takes a great deposition, the case and facts become more clear and, as a result, a favorable and faster outcome is likely to occur.  In the best circumstances, the deposition of a party opponent or a key witness is often where the opposing party sees their case fall apart.  This occurs if an attorney’s deposition reveals useful information, gains admissions and successfully undermines (or bolsters) a witness’ credibility as well as the attorney’s theory of the case.

law-education-series-2-1467427-300x225I recently had a business contracts case where we represented a business seeking recourse for the breach of a business contract.  The defendant’s main defense was that it was a third party who signed the contract, not the defendant.  Throughout the course of the deposition, I gained a number of admissions from the defendant which (a) undermined the factual credibility of her defenses; and, (b) gained testimony which supported one of our alternate theories of the case – that the third party had her authority to execute the document on her behalf and that it was reasonable for my client to rely upon this apparent authority; and, (c) gained information about the existence of other documents which supported my client’s positions.  The case settled at the deposition table for full damages plus my client’s attorney’s fees, due to the fact that the opposing party realized in the deposition that we were very likely to win at trial.

The groundwork for making a deposition successful is laid long before the day of the deposition.  Here are some deposition preparation practices which have helped me have success on the day of the deposition:

Appearing before the Circuit Court in Pasco County, Attorney Kevin Brick argued for and obtained a judgment and an attorney’s fees award on behalf of his clients in a Florida Deceptive and Unfair Trade Practices Act case in February, 2017.  The case involved a corporate and an individual defendant who wrongly held themselves out as licensed contractors able to perform certain home improvement construction projects, which were left uncompleted in 2016 after the contractors had been paid.  Brick’s clients were then left to hire other contractors, at a higher cost, to complete the job.

At the hearing, Brick argued for – and won – an award of the higher costs paid to the other contractors as compensatory damages.  Although the Defendants argued against the higher damages award, the Court agreed that the higher additional expenses incurred were a direct result of the Defendant’s breach of the contract.  law-order-1240301-300x225The main issue in the case was a breach of contract, but Attorney Brick also sued the defendants under a statutory cause of action under the Florida Deceptive and Unfair Trade Practices Act (or “FDUTPA”) due to the deception used by the Defendants.

Under FDUTPA, anyone who is damaged by a deceptive act or unfair practice in furtherance of a trade or business is entitled to be protected under the Statute.  Florida case law provides that, even if the breach of the contract and the deceptive act were one and the same, plaintiffs can still proceed under both causes of action so long as the breach is also a deceptive act.  The damages under both causes of action were cumulative; however, suing under the statute allowed for Attorney Brick to argue for and obtain an additional award of attorney’s fees and costs, which would not have been available under the terms of the contract.

gavel-1238036On June 3, in the case of Yifat Shaolm, et. al. v. Nissim Sabatani, the Hon. Bruce Boyer of the Pinellas County Circuit Court conducted on evidentiary hearing on the Plaintiff’s Emergency Motion For Temporary Injunction Without Notice and to Expel And Dissociate Defendant As a Member of Reflection Fashions, LLC.  The Plaintiffs sought wide-ranging relief in their Motion, ultimately attempting to have the court remove the Defendant as a Member of his business and to have the Plaintiffs unilaterally control all operations of the business.  This relief was sought by the Plaintiffs under an alleged oral operating agreement as well as under the new Florida Revised Limited Liability Company Act, which permits involuntary judicial dissociation of a member.

Attorney Brick made his initial appearance in the case for the Defendant shortly after the Motion was filed and denied the Plaintiff’s attempt to have the outcome of the hearing determined without an opportunity for the Court to hear argument from the Defendant. (Florida Rule of Civil Procedure 1.610 permits an injunction to be entered against a litigant in certain circumstances without providing notice of the hearing to that litigant or an opportunity for them to be heard by the Court.). Additionally, the court denied the Plaintiff’s request to designate the hearing as emergency in nature.  Finally, at the June 3 full evidentiary hearing on the Plaintiff’s Motion, the Court agreed with Attorney Brick and completely denied all relief requested by the Plaintiff.  As a result, the Defendant has maintained all of his management and ownership rights in his business during the pendency of the case.

Attorney Brick has also filed a Motion to Dismiss the Plaintiffs’ Complaint in its entirety on behalf of the Defendant due, in part, to a misjoinder of direct and derivative causes of action.  A motion hearing on the matter is forthcoming.

broken-glasses-1-1316764In the case of Tina Accomando-Himpler v. Phillip David Hines, attorney Kevin Brick successfully argued for the imposition of a repeat violence injunction against petitioner’s business partner, David Hines.  After a contested evidentiary hearing in the Thirteenth Judicial Circuit in Hillsborough County, the court granted the full relief requested by attorney Brick in a Final Judgment of Injunction Protection Against Repeat Violence.  As a result, the respondent will be prohibited from numerous actions, including contacting the petitioner, being within 500 feet of her or possessing any firearms or ammunition for a period of one year.

The court’s complete order can be read here: InjnuctionOrder.Himpler.

If your business dispute has become violent or your business partner has begun harassing or threatening you, please call us at 813-816-1816 to talk about your options.

where-s-the-money-gone-1513359Fraud victims often feel embarrassed, humiliated and helpless once they realize that they have been victimized. Business, internet and other fraud schemes are so pervasive that the FBI has outlined and notified the public of  four categories of fraud schemes, each of which may target a business as well as an individual, as (1) Common Fraud Scams, (2) Investment Related Scams, (3) Internet Scams, (4) Senior Citizen Targeted Scams.

From a legal standpoint, a  fraud occurs in Florida when: (1) a person makes a false statement regarding a material fact; (2) that person knew or should have known that the representation was false; (3)  that person intended that the representation induce the other party to act on it; and (4) the other party suffered damages in justifiable reliance on the representation. Jackson v. Shakespeare Found, Inc., 108 So.3d 587, 595 (Fla. 2013).  Small businesses may be defrauded by vendors, suppliers, creditors, customers, employees and others.  One of the most common and devastating sources of small business fraud in Florida occurs between and among business partners.

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contract-1426885Generally, for a person to recover damages under a theory of breach of contract, that person has to prove that the other party committed a “material” breach of a contract causing damages to the plaintiff.  Normally, a failure to perform a certain important task before a required contractual deadline would constitute a material breach if the contract states that “time is of the essence”.  However, many people write their own contracts without the assistance of a lawyer or have no written contract at all.  The result is that the contract may not contain the necessary terms to establish that time is of the essence or the contract does not state a time for completion of performance by the other person.

So what happens if performance does not occur for a long time but there is no deadline in the contract?  Can the non-performing party be held in breach?

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