Articles Posted in Florida Business Litigation

In the case of Mandarelli, et al v. Power Line Industries, Inc., filed in the Circuit Court of Hillsborough County, Brick Business Law filed and gavel-1238036-300x201won a motion for contempt and sanctions resulting in a rare final judgment sanction in the case.

The Plaintiffs sued Brick’s client under a number of theories of liability such as breach of contract and fraud alleging that Power Line Industries sold a defective product to the Plaintiff and defrauded him.  Brick counter-sued on behalf of its client for defamation due to videos that the Plaintiff posted on YouTube claiming that the product was defective and the Defendant was deceiving the public.

The Firm aggressively executed its litigation strategy, including motion practice and discovery, over the course of a year of litigation.  The Plaintiffs were continually dilatory and obtuse in their responses.  Due to the Plaintiff’s tactics, Brick filed a Fla. R. Civ. P. 1.380(b) motion for contempt and sanctions, arguing at the hearing that the Court should find that the Plaintiffs’ tactics constituted the “rare circumstance” which justified the ultimate sanction of the striking of the Plaintiff’s claims and dismissal of the lawsuit, plus contempt of court and an award of Brick’s attorney’s fees and costs.  The Court heard Brick’s Motion on June 4 and ultimately issued its Order on September 4 granting all relief requested in the Motion.

504018046-300x200On June 11, Brick Business Law prevailed in the final hearing in a case involving claims of conversion, breach of implied in fact contract and civil theft pursuant to Fla. Stat. 772.11.   Brick represented a national seller of home environmental products which had a long-standing relationship with a vendor for the storage and transportation of its marketing materials.  After the termination of the arrangement, the vendor failed to return the subject property.  Brick’s client made multiple attempts to get its property, but the Vendor refused.  Brick sent the required civil theft demand letter to the future defendant; however, the vendor persisted in refusing to return the property, claiming it was not owned by Brick’s client.  Thereafter, the lawsuit was filed in Hillsborough County Circuit Court.

Florida Statute 772.11 is known as Florida’s Civil Theft Statute.  It carries a higher burden of proof, requiring the Plaintiff to prove the case by a “clear and convincing evidence” standard rather than the “greater weight of the evidence” standard that is prevalent in most civil cases.  The statute permits a Plaintiff that proves that he is the victim of civil theft to recover triple actual damages, attorney’s fees and costs.  However, there is a significant strategic consideration required prior to filing a civil theft claim because if the Plaintiff is unable to prove that his evidence meets the heightened burden, he can be liable for the Defendant’s attorney’s fees and costs.  Despite the risk, Brick pursued the Defendant for statutory civil theft damages.The Court found that Brick’s client’s evidence met the standard required to obtain triple damages, plus attorney’s fees and costs, ultimately rewarding Brick’s client the full amount of damages requested. law-education-series-2-1467427-300x225

Brick Business Law focuses its practice on Florida litigation of business issues.  The firm litigates cases related to the protection and prosecution of business’ interests in regard to breach of contract, civil theft, collections, real estate, consumer, employment and other related issues.  The Firm offers a free initial consultation, which can be arranged by calling the Firm’s main phone number at 813-816-1816 or by visiting the contact page on the Firm’s website.

In the case of Reitz v. Lopez, in the Circuit Court of Hillsborough County in Tampa, Florida, Brick Business Law won a final judgment for the Plaintiff for approximately $100,000 in a hearing held in March, 2018.

law-education-series-2-1467427-300x225The case involved a business dispute whereby the Defendant entered into an oral agreement with Brick’s client to share profits from a proposed internet venture and to pay the Plaintiff wages for the time he spent on the venture.  The Parties worked together for several months during which the Defendant utilized the personal credit accounts of the Plaintiff to run up a substantial debt, supposedly for the benefit of the joint venture, and eventually left the Plaintiff to pay it. The Defendant also stopped paying the Plaintiff his agreed-upon wages for the work he performed for the joint venture.  The Plaintiff was left with tens of thousands of dollars in unpaid credit card debt and several months of unpaid wages.  There was no written agreement in place between the parties and much of the business arrangement was established through various online chats using different usernames over several months.  Despite the significant challenges presented by the lack of a formal business agreement (or even actual conversations between the parties), Brick filed suit against the Defendant for a breach of an implied contract, conversion, civil theft, unjust enrichment and unpaid wages.

The Court ultimately found in favor of the Plaintiff on all counts and also awarded attorney’s fees and costs of the case to Brick’s client.  Additionally, the Court found that Brick’s presentation of evidence satisfied the applicable “clear and convincing evidence” standard under Florida’s Civil Theft Statute.  As such, the Court ordered the Defendant to pay Brick’s client trebled (triple) his actual damages under the civil theft count.

Court-Image-300x200On January 15, 2018, Brick Business Law won a summary judgment motion for approximately $75,000 on behalf of the Plaintiff in the case of Lozon v. FFR Global Inc., et al.  The damages awarded included approximately $10,000 in attorney’s fees and costs.

The case involved a business financing arrangement between a Colorado distributor and a Florida supplier.  The complex structure applied credits, set-offs, interest and payments on inventory shipments to an underlying promissory note entered between the parties.  The founder of the Defendant corporation dissolved the company without repaying the amounts owed pursuant to the financing arrangement.  Brick Business Law sued the dissolved corporation as well as the founder, seeking to pierce the corporate veil, and a guarantor.  The corporation and the founder eventually filed bankruptcy, leaving the guarantor as the sole source of recovery for Brick Business Law’s client.

The guarantor disputed numerous factual contentions of the Plaintiff, including, most specifically, the calculations used to arrive at the claimed damages figures.  Over strenuous argument from the Defendant at the hearing on the Plaintiff’s Motion for Summary Final Judgment, Brick Business Law was able to persuade the Court that there was no genuine issue of material fact and that its client was entitled to the full amount of claimed damages, pre- and post-interest judgment at the highest rate allowable by law, attorney’s fees and costs.   The Court agreed and entered the judgment.

WEB-ONLY-RyanGphoto-20151124-Kevin-Brick-Headshots-0100-CROPPED-300x200One of the questions I get asked most often by new clients is whether someone who files a lawsuit in Florida (or is sued in Florida) can win their attorney’s fees from the opposing party.  Like many legal topics the answer is “it depends.”  I hate giving this answer, which is why I look so serious in the picture on the right.  Let’s go through the basic parameters:

I. Default Rule: All Parties Pay Their Own Attorney’s Fees.

Unless an exception applies, all parties are required to pay their own attorney’s fees.   This is the “default” rule in Florida litigation.  However, there are a lot of exceptions.  Let’s look at the exceptions which allow the “prevailing party” to recovery their own attorney’s fees from the other side.

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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