Jeffrey Law, PAPERSONALIZED AND EFFECTIVE LEGAL REPRESENTATION That You Can Trust2023-07-06T07:02:14Zhttps://www.rsjlegal.com/feed/atom/WordPress/wp-content/uploads/sites/1602766/2021/07/cropped-jeffrey_FAV-32x32.pngOn Behalf of Jeffrey Law, PAhttps://www.rsjlegal.com/?p=467772022-08-31T06:13:09Z2022-08-31T06:09:43ZMintz Truppman, P.A. v. Cozen O'Connor, PLC, No. SC20-1225, 2022 Fla. LEXIS 1292, at *5 (Aug. 25, 2022), the Florida Supreme Court recently had an opportunity to address whether a writ of prohibition can used as a vehicle for interlocutory review/redress when a lower tribunal “erroneously exercises” its jurisdiction. In Mintz, the trial court declined to dismiss a state court action brought to recover attorney’s fees, on the basis of collateral estoppel, where there had been a previous settlement in a United States District Court action which reserved jurisdiction over a remaining disputed issue of attorneys fees. The Third District Court of Appeal decided that it had "little difficulty concluding that [defendants] [had] established each of the four elements of collateral estoppel[,]" and issued an extraordinary writ, of prohibition, preventing the lower tribunal from further exercising jurisdiction over the matter. The Third District dismissed, as moot, the petitions to the extent that they sought alternative certiorari relief.
The Florida Supreme Court noted that writs of prohibition are preventive in nature, and not corrective. Id. at * 5. The Supreme Court went on to note that collateral estoppel is an affirmative defense, just like res judicata and many others, and that the granting of a writ of prohibition here would be a slippery slope where “the writ could be used to end-run our rules on appeals generally and interlocutory appeals in particular.” Id. Rather, writs of prohibition are appropriate where “a court has proposed to act in excess of its subject matter jurisdiction.” Id. Below, the trial court had acted in a matter over which it indeed had subject matter jurisdiction—defendants simply disagreed with a ruling as to a defense.
Notably, our firm successfully defended an appeal in the Third District in 2021, in which the primary issue was one of judicial estoppel. There, the Third District treated the issue of application of judicial estoppel as one that was within the trial court’s discretion to apply based on the facts. Alvarez v. Jimenez, 337 So. 3d 117, 119 (Fla. 3d DCA 2021). If a trial court has discretion to apply a defense, then it cannot be said that the trial court is exceeding its subject matter jurisdiction by rendering a ruling relative to the defense. That is not to say that an erroneous trial court ruling cannot be corrected through appropriate appellate review when it makes a mistake as to application of such defense—only that the key is the appropriate vehicle for appellate review. In fact, some mistakes that are not appealable as non-final orders can and should be reviewed through certiorari writ where there will be harm not remedied by plenary appeal and there is a departure from the essential requirements of law. In Mintz, the Third District will ultimately have a second bite at the proverbial apple, and will get to decide whether certiorari relief should be granted or whether the defendants should be forced to wait until a final judgment is entered and utilize the Florida Rules of Appellate Procedure to appeal from same. This decision will likely come down to whether there will be sufficient harm should defendants have to wait for a plenary appeal, with the obvious argument being wasted time and effort at trial. That said, as the Third District has stated: “[W]hile the litigation of a non-issue can be expensive and time-consuming, ‘[t]he authorities are clear that this type of harm is not sufficient to permit certiorari review’." Banco Latino (S.A.C.A.) v. Kimberly, 979 So. 2d 1169, 1171 (Fla. 3d DCA 2008).
If you need assistance with secondary review of a trial court Order, Jeffrey Law, PA, stands ready to assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 “Top Up and Comer” by South Florida Legal Guide and a “Rising Star” by Superlawyers, in 2022 was designated on the Super Lawers list, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2022), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating byAvvo.com, and various client reviews can be accessed through that platform. Seehttps://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
]]>On Behalf of Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460552023-07-02T10:42:32Z2020-04-09T05:00:00Z
· Can the Practice Be Marital Property?
Every business owner is concerned that a divorce will negatively affect his or her business; however, to doctors, this fear is often very more personal given their intimate involvement in their practices.
In Florida, the Court “equitably” distributes all marital assets and liabilities. While “equitable” distribution does not necessarily mean “equal” distribution, that is the default result. If a business, including a medical practice, was established during the marriage, it is legally considered “marital property.” Where only one spouse is a doctor, the law is clear that the business should be awarded to the doctor, and not owned jointly by the spouses post-divorce. In such a case, the business must be valued and the other spouse will receive a credit for the marital value of the practice kept by the physician. Experienced and competent family law counsel is extremely important, because flawed legal arguments as to business valuations could result in over-valuation of the portion of the medical practice that is actually subject to distribution. The court must value the practice, and the first step is retaining a competent and well-qualified business evaluator. The business evaluator, in ascertaining the distributable value of the practice, may take into consideration property and assets of the business, such as medical equipment and accounts receivable, as well as intangible assets, such as goodwill. Generally, goodwill refers to “the advantage or benefit a business has beyond the value of its property and capital.” Swann v. Mitchell, 435 So. 2d 797, 799 (Fla. 1983).
Critically, there are two types of goodwill: personal and enterprise. Personal goodwill relates to a specific individual, based on his or her ability or reputation. Enterprise goodwill, on the other hand, refers to an entity’s ability or reputation as a business. In the context of a physician’s medical practice, enterprise goodwill often requires an analysis of a practice’s ability to attract and maintain patients, despite any potential change in physicians employed. If you are a physician with a medical practice, the more that your business’ goodwill is “personal” to you, the lower the distributable value will be for the purposes of divorce. If you are the party keeping the practice, this means that the court’s “equitable distribution” should result in less assets being awarded to the other spouse to make-up for the practice being awarded to you.
Because personal goodwill is not subject to distribution as a marital asset upon divorce, determining how much of a medical practice’s goodwill is enterprise versus personal is critical for equitable distribution. Thus, goodwill claimed as a marital asset must include the value of the medical practice, independent of the physician-spouse’s continued presence or reputation. It is the burden of the party claiming goodwill as a marital asset to produce evidence of such goodwill.
· Can the Value of a Medical Degree Be Distributed if Paid for With Marital Assets?
The legal answer to this question is a clear and unequivocal “no.” A college or professional degree is not subject to distribution because it would be too speculative to value same. Yet, student loan debt that accrues during the marriage, can be considered a marital debt. A physician’s divorce counsel should be prepared to know and understand the case law in this respect.
· Will Alimony Be Awarded to the Non-Doctor Spouse?
The answer to this question depends primarily on two things: (1) the length or the marriage and the evaluation of statutory factors; and (2) one spouse’s need and the other spouse’s ability to pay alimony. The standard of living during the marriage should be considered in determining whether there is a need for alimony. A common scenario in doctor divorces is where the non-doctor spouse worked to help support the other spouse through medical school. A non-doctor spouse might also argue that the other spouse forfeited a promising career so that the other spouse could pursue his/her career as a doctor. In Florida, there is no formula to determine entitlement to, or amount of, spousal support, and it is instead a very fact and evidence driven determination. Thus, it is important to retain legal counsel who is familiar with the case law, the legal arguments to be made, and the type of evidence that needs to be presented to obtain the best possible result.
· How Are Busy Schedule and Time-Sharing Issues Addressed?
If a married couple has minor children, time-sharing can be one of the most contentious and litigated issues in a divorce. Such issues can be compounded in a divorce involving a doctor, who works long, irregular and/or taxing hours. These issues can often be resolved by competent and creative attorneys and mediators through outside-the-box settlement negotiations, in a manner that satisfies all parties involved. However, if time-sharing must be litigated, it is important that the appropriate evidence be presented to satisfy any concerns that the court might have regarding the parent’s schedule and work demands.
· Time Consuming Litigation and Discovery Matters.
Since a doctor’s job is already time consuming and taxing, it is important that experienced and adaptive divorce professionals are utilized to ensure that the stresses of litigation on the client, including evaluating, preparing, and responding to discovery requirements, are mitigated, and the necessary work can be done around the client’s schedule.
A doctor’s divorce can be scary for the client, because of the number of complex issues involved, and the financial, emotional, and reputational risks. In order to protect your assets, income, estate, and relationship with your children during a divorce, you should contact knowledgeable and experienced divorce counsel. If you are a physician considering divorce, the attorneys at Jeffrey Law, PA, stand ready to consult and assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 "Top Up and Comer" by South Florida Legal Guide and a "Rising Star" by Superlawyers (2019 and 2020), and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2020), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating by Avvo.com. Various client reviews can be accessed online. See https://www.martindale.com/attorney/robert-stone-jeffrey-157166604/. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
]]>On Behalf of Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460582021-07-08T21:05:20Z2020-03-03T06:00:00ZMonasky v. Taglieri, No. 18-935, 2020 U.S. LEXIS 1362, at *1 (Feb. 25, 2020), a rare family law issue made its way to the United States Supreme Court, by virtue of an action brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. In Monasky, a wife, who was a U.S. citizen, argued that as soon as she moved to Italy with her Italian husband, he became physically abusive towards her. After a heated argument, the wife fled with their minor daughter to the Italian police and sought shelter in a safe house. Two weeks later, the wife left with the minor child for Ohio. Husband brought Hague Convention action in the United States District Court for the Northern District of Ohio, seeking to compel the return of the child to Italy.
The Hague Convention generally provides that a child who is wrongfully removed from his or her country of habitual residence must normally be returned to that country. After a 4-day trial, the District Court ordered the return the child to Italy, finding that the shared intention of the child’s parents was for the child to reside in Italy, and that even though there was no formal agreement as to same, Italy was the child’s country of habitual residence. At trial, mother argued that there must be an actual agreement for the child to reside in Italy to base a finding of habitual residence on such an agreement, and husband argued that no actual agreement was necessary and that the totality of circumstances should be considered. The United States Sixth Circuit Court of Appeals, en banc, affirmed the District Court’s findings as to the child’s place of habitual residence. The Supreme Court also affirmed, and Justice Ginsberg wrote the decision for the majority, which included Chief Justice Roberts, and Justices Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and, in part, Justices Thomas and Alito. The Court held that a totality-of-circumstances test should apply, and found that there is no categorical requirement, such as an actual agreement, and that a variety of factors, such as physical presence and the fact that the parents have made their home in a certain country, can be considered in determining whether a residence is “habitual” for an infant minor child.
While the Hague Convention allows a court to refuse to return a child if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation[,]” and the District Court’s found that the testimony as to abuse against the mother was disturbing, there was no evidence that the father ever abused or neglected the child. Any time-sharing issues relating to the mother's abuse could be litigated at the appropriate forum.
Lastly, the United States Supreme Court resolved the issue of the appellate standard of review for an initial habitual residence determination. The Court decided that the issue presented a close call, but that it is a mixed issue of law and fact. Generally, questions of law are reviewed de novo and questions of fact, for clear error, while the appropriate standard of appellate review for a mixed question depends on whether answering it entails primarily legal or factual work. The Court decided that the “clear error” standard of review was appropriate in the case.
Sometimes, a Hague Convention action is either necessary or the most appropriate course of action for a client in need of securing the return of a child. However, the Hague Convention does not always apply. More, very often, there are other, state court, remedies available to secure the return of a minor child, which may progress in a quicker and more cost-effective manner. It is important to retain legal counsel who is well-versed and in tune with legal developments, including appellate issues if you are dealing with a family law or child custody dispute, including international child abduction. If you need help, Jeffrey Law, PA, stands ready to assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 "Top Up and Comer" by South Florida Legal Guide and a 2019 and 2020 "Rising Star" by Superlawyers, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2020), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. Seehttps://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.]]>On Behalf of Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460592023-07-02T10:56:49Z2020-02-07T06:00:00ZMcElroy v. Oaks on the Bay, LLC, reiterating the importance of the opportunity to be heard prior to the issuance of summary judgment. McElroy v. Oaks on the Bay, LLC, No. 2D18-4932, 2020 WL 253025, at *1 (Fla. 2d DCA Jan. 17, 2020).
In McElroy, Brian and Frances McElroy (“the McElroys”) appealed a summary judgment granted in favor of Oaks on the Bay, LLC (“Oaks”) to enforce two contracts for payment of services. On appeal, the McElroys argued that summary judgment was improper because they were not given the opportunity to be heard at a summary judgment hearing. Oaks took the position that the McElroys were not stripped of their opportunity to be heard, but rather, waived it. Oaks stated that the McElroys waived their right to a hearing on the motion for summary judgment by conducting discovery in a “dilatory” manner, “[failing] to obtain new counsel after their attorney withdrew, . . . [failing] to attend a case management conference, and . . . [failing] to file a written response to the motion for summary judgment.” Id. Thus, Oaks claimed that their lack of participation in the litigation served as a waiver to the hearing. This argument heavily relied on a 2017 Florida Supreme Court case that held a party may waive a legal right, even when it is statutorily or constitutionally protected. Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294, 305 (Fla. 2017).
The Second District Court of Appeal failed to adopt Oak’s position. First, the Court noted that Fla. R. Civ. P. 1.510(c) requires a hearing on a motion for summary judgment, and that failure to conduct same would constitute a violation of due process. Thus, the court below was without discretion to grant summary judgment in the absence of a duly noticed hearing. Second, the Court found that even if the right to a hearing on summary judgment could be waived, the McElroys did not act in a manner inconsistent with that right. The Court pointed to the fact that the McElroys filed pleadings and financial affidavits, and objected to requests for production. Therefore, the Court found that the right to a hearing on a motion for summary judgment cannot be waived per Rule 1.510(c), and even if it could, the McElroys did not waive that right by failing to timely engage in discovery. As such, both judges and parties to litigation must ensure that a proper hearing is scheduled for the purposes of summary judgment.
Once in litigation, it is important to retain legal counsel who is well-versed and in tune with legal developments, including procedural requirements and appellate issues. Jeffrey Law, PA, stands ready to assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 "Top Up and Comer" by South Florida Legal Guide and a 2019 and 2020 "Rising Star" by Superlawyers, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2020), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. Seehttps://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.]]> Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460602021-07-27T17:03:21Z2019-10-15T05:00:00ZKhan v. Deutschman, No. 1D18-822, 2019 Fla. App. LEXIS 15412, at *3 (1st DCA Oct. 11, 2019). The dating violence statute provides protections for a person who “is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence[.]” § 784.046(2)(b), Fla. Stat. Dating violence is "any assault, battery, aggravated battery, sexual assault, stalking, aggravated stalking, kidnapping or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against another person" between individuals who have had or currently have a significant, romantic relationship. § 784.046(1)(a), (d). Any qualifying person may seek a civil (non-criminal) injunction from the Circuit Court to protect them.
In Kahn, the wrongful conduct at issue was stalking, and the First District’s analysis was confined to whether the requirements for a stalking injunction were met. “The stalking element is found not only in the dating violence injunctions, but also the domestic violence injunctions, the repeat violence injunctions, and more recently the standalone stalking injunction that was created by the Legislature. In each of these types of injunctions the legal analysis for the application of the stalking requirements is identical and in fact interchangeable although other requirements of the various injunctions are substantially different.” Khan, 2019 Fla. App. LEXIS 15412, at *5. "Stalking" is defined as when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another." § 784.048(2), Fla. Stat. "'Harass' means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." § 784.048(1)(a). Finally, cyberstalking is harassing through electronic communication. § 784.048(1)(d). While a dating violence injunction requires acts of “violence,” the legislature specifically included “stalking” within the definition of violence, and defined that term as "willfully, maliciously, and repeatedly follow[ing], harass[ing], or cyberstalk[ing] another person." § 784.048(2), Fla. Stat.
In Kahn, the question for the trial court was whether the respondent’s repeated e-mails and contacts, one of which was described as “threatening,” and two more of which contained comments described as “hectoring” (bullying), were sufficiently harassing. Petitioner sent a formal cease and desist letter from an attorney, and contacted the Sheriff for assistance, and Respondent’s conduct continued notwithstanding. It is noteworthy that the court specifically noted that because Respondent’s conduct continued after the formal legal action (cease and desist letter), Respondent engaged in “malicious harassment.” Citing to Black’s Law Dictionary, the First District found that “[m]alicious behavior goes beyond intent to cause injury to include behavior that is ‘without just cause or excuse.’” Other appellate cases addressing harassing conduct and stalking have discussed a “legitimate purpose” defense in reversing injunctions, finding that where there was a legitimate purpose for the contact it could not be the basis for a civil injunction. Similarly, other cases have held that uncivil behavior that causes annoyance, or even distress, does not in and of itself amount of malicious harassment. Young v. Young, 96 So.3d 478 (Fla. 1st DCA 2012). This leads to the question of determining when "hectoring" becomes actionable.
I n Kahn, it appears that there was no legitimate purpose for the contact in question. When discussing and assessing litigation, it is important to think of cases in terms of evidence and proof. The Kahn case appears to be the first published opinion where a pre-litigation cease and desist letter was relied upon as proof that contact was “without just cause or excuse,” or, in other words, no “legitimate purpose.” Given the First District’s opinion in Kahn, depending on the facts and available evidence, it may be prudent (but is certainly not required) for those in need of an injunction for protection which relies on any form of “harassment,” to send a pre-petition cease and desist letter.
If you need assistance with a Florida family law matter, contact our office at 305.222.7921 or Office@RSJLegal.Com, immediately, to schedule a consultation!
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Robert has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law, as well as civil and commercial litigation. Robert has been awarded an AV Rating by Martindale-Hubbell (2017 and 2018), as "Peer Rated For Highest Level of Professional Excellence." Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Robert can be found at www.RSJLegal.com
This Blog and Website are made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this Blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. This Blog is not published for advertising or solicitation purposes. Regardless, the hiring of a lawyer is an important decision that should not be based solely upon advertisements.]]>On Behalf of Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460612023-07-03T13:58:51Z2019-07-20T05:00:00ZZiegler v. Natera, No. 3D19-86, 2019 Fla. App. LEXIS 10818, at *1 (3d DCA July 10, 2019). In Ziegler, 6 days before a marriage in Venezuela, the future husband presented his pregnant future wife with a pre-marital agreement, and promised that he would provide her with financial disclosure prior to the wedding. Instead of doing so, he threaten to cancel the wedding if she did not sign the document. The cancellation of the wedding would have interfered with the plans that the parties had to emigrate to the United States. The Miami-Dade County trial court found that the pre-marital agreement was entered under duress, and set it aside.
The Third District affirmed, citing the fact that "'[I]t is black letter law that the parties to an antenuptial agreement do not deal at arm[']s length with each other.' Rather, '[t]heir relationship is one of mutual trust and confidence.' As such, 'the parties must exercise the highest degree of good faith, candor[,] and sincerity in all matters bearing on the terms and execution of the proposed agreement, with [f]airness being the ultimate measure.'" Id. (internal citations omitted omitted). The court found that, under the circumstances, the Wife was coerced by means of a wrongful threat such that the exercise of free will was precluded[.]" Id.
The circumstances surrounding execution of a pre-marital agreement are almost as important as the text of the agreement itself. At Jeffrey Law, we understand the emotionally sensitive nature of negotiating pre-marital agreements, and assist our clients with navigating the process from preliminary discussions through the date of signing, so as to ensure that process is as smooth as possible and, most importantly, that the underlying agreement is valid and enforceable. If you need assistance with a pre-marital agreement, Jeffrey Law, PA, stands ready to assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 "Top Up and Comer" by South Florida Legal Guide and a "Rising Star" by Superlawyers, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2019), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating byAvvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.]]> Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460632023-07-04T05:24:55Z2019-04-16T05:00:00ZMartino v. Wal-Mart Stores, Inc., 908 So. 2d 342, 346 n.2 (Fla. 2005). Third-party spoliation claims “occur when a person or an entity, though not a party to the underlying action causing the plaintiff’s injuries or damages, lost, misplaced, or destroyed evidence critical to that action.” Id. No independent cause of action for spoliation exists against a first-party tortfeasor. Id. at 346-47. To address spoliation against a first party, sanctions should be sought from the trial court in the relevant underlying action. However, with respect to third party spoliation claims, an independent cause of action does exist, and the Third District Court of Appeal very recently clarified how and when such an action accrues and when it is ripe, seemingly receding from prior opinions.
In Amerisure Ins. Co. v. Rodriguez, No. 3D18-1524 and 3D18-1058 (Fla. 3d DCA 2018), the Third District Court of Appeal addressed two petitions for writ of certiorari relating to spoliation of evidence claims against third parties to the underlying trial court action. In the underlying action, the plaintiff was collecting workers compensation benefits from his employer, BV Oil, through the employer’s insurance carrier, Amerisure Insurance Company, due to an accident that occurred on the job. The plaintiff separately sued a company called Cosme Investment, claiming that he was an invitee on Cosme’s property when he was injured, and that Cosme’s negligence contributed to his injury. While the case against Cosme was pending, the plaintiff allegedly learned that BV Oil and Amerisure, who were third parties to that case, had possession of a videotape of the accident, but negligently lost or destroyed the videotape. Plaintiff then amended his complaint against Cosme, to include a count suing third parties BV Oil and Amerisure, for spoliation of evidence, claiming that “the loss of the video ‘significantly impairs the Plaintiff’s ability to prove his claim and/or to address the comparative negligence defense, thereby affecting Plaintiff’s potential recovery in this case.” The trial court in the action entered orders scheduling both the underlying negligence action, and the spoliation claims, for trial at the same time, and also entered discovery orders requiring BV Oil and Amerisure to provide discovery. Amerisure sought certiorari review of these orders, and the Third District Court of Appeal granted certiorari review and held that, because a cause of action cannot be maintained until it accrues, and because a third party spoliation action does not accrue until the underlying negligence action is final, the two cases cannot be tried together and discovery was not appropriate.
Interestingly, while the Third District claimed that it did not “overrule” two previous decisions, Miller v. Allstate Ins. Co., 573 So. 2d 24, 28 (Fla. 3d DCA 1990) and Yoder v. Kuvin, 785 So. 2d 679, 681 (Fla. 3d DCA 2001), “which indicated that products liability claims and third-party spoliation claims concerning the allegedly defective products could be tried together[,]” the Rodriguez opinion is highly critical of these previous decisions, even indicating that their “status as ongoing authority is doubtful at best.” Thus, any litigator should be familiar with the new Rodriguez opinion, and weary when citing to Miller or Yoder.
Once in litigation, it is important to retain legal counsel who is well-versed and in tune with legal developments. Jeffrey Law, PA, stands ready to assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. Mr. Jeffrey was named a 2019 "Top Up and Comer" by South Florida Legal Guide and a "Rising Star" by Superlawyers, and was awarded the prestigious AV Rating by Martindale-Hubbell (2017 – 2019), as “Peer Rated For Highest Level of Professional Excellence.” Robert also has a perfect 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. Seehttps://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.]]>On Behalf of Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460642023-07-04T06:35:32Z2019-04-09T05:00:00ZId. (quoting Presley v. Ponce Plaza Assocs., 723 So. 2d 328, 330 (Fla. 3d DCA 1998).
Consider that the plaintiff in Gomez, and its predecessor in interest, were sophisticated parties –a mortgage lender and servicer — and imagine how many individuals and small businesses, who do not have law firms on retainer, make errors or omissions in their transactions, leading to increased fees (such as through costly appeals), costs, and delays. While a defendant cannot avoid liability due to typographical error as to a name in a contract or promissory note, such errors can lead to increased costs, delays, and stress. Hiring competent legal counsel to handle a transaction at the inception is as important as securing competent litigation counsel after problems arise.
Once in litigation, it is important to retain legal counsel who is well-versed in the statutes applicable to your case, case law and other legal developments, and who is prepared to, and capable of, properly and effectively arguing your position before the trial court in order to avoid unnecessary expenses, including the costly process of an appeal. Jeffrey Law, PA, stands ready to assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com. Mr. Jeffrey has been awarded an AV Rating by Martindale-Hubbell (2017 – 2019), as “Peer Rated For Highest Level of Professional Excellence.” Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.]]>On Behalf of Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460652023-07-04T06:23:51Z2019-03-05T06:00:00ZIn re: Lisse, 18-1866, 18-1889 (7th Cir. Sept. 28, 2018). Judge Easterbrook’s order in In re: Lisseprompted me to write this note, expanding on this issue as it relates to Florida law, as we have witnessed problematic attempted misuse of judicial notice numerous times in the past several years.
In re: Lisse specifically holds that a power of attorney and a motion filed in a state court record were not appropriate subjects of judicial notice in an appeal. Judge Easterbrook noted that if the documents were offered simply to show that they had been filed, judicial notice might be appropriate in that limited context; however, otherwise, judicial notice was inappropriate. With respect to the power of attorney, Judge Easterbrook noted as follows: “Is it authentic? See Rules 901 to 903. Are the four signatures real or forged? . . . . Is it the original or perhaps a duplicate admissible under Rule 1003? Is the document even relevant? See Rule 402. If the power of attorney had been submitted in this proceeding it would not be subject to judicial notice. It does not get a privileged status because it was filed in a state suit.” More, Judge Easterbrook, demonstrating the disfavor of unnecessary motion practice by appellate courts, noted that the filing of a separate request for judicial notice in an appellate proceeding is inappropriate, and that the “right place to propose judicial notice . . . Is in a brief.” These are all apt observations which carry over to practice within the courts of the State of Florida.
As Judge Easterbrook noted, misuse of judicial notice requests have become far too common. Practitioners who do not understand the proper use of judicial notice requests can cause unnecessary resources to be expended in litigation, or worse, severely prejudice their clients’ cases by placing undue reliance on the availability of judicial notice of evidentiary facts at trial. It is important to combat any inappropriate judicial notice requests in litigation, as such requests can be utilized by parties in an effort to evade the formal rules of evidence.
In Florida, documents from other legal actions are not admissible simply because they are part of a court file somewhere. In BDO Seidman, LLP v. Banco Espirito Santo Int’l, 38 So. 3d 874 (Fla. 3d DCA 2010), the Florida Third District Court of Appeal determined that it was inappropriate for the trial court to take judicial notice of a bankruptcy court order. BDO Seidman, 38 So. 3d at 880 (“BDO argues that the trial court erred by taking judicial notice of a bankruptcy court order, and allowing that order to be shown to the jury. The trial court took the view that the facts determined by the bankruptcy court were properly admissible in this case. BDO’s objection should have been sustained.”)(emphasis added). “Inadmissible evidence does not become admissible because it is included in a judicially noticed court file.” Id. “Although a trial court may take judicial notice of court records, it does not follow that this provision permits the wholesale admission of all hearsay statements contained within those court records.” Id. “[T]here has been a ‘seemingly widespread but mistaken notion that an item is judicially noticeable merely because it is part of the ‘court file.”‘ Id. See also Rubrecht v. Cone Distrib., Inc., 95 So. 3d 950, 959 (Fla. 5th DCA 2012)(“A statement made in an appellate opinion cannot substitute for proof of the fact.”). For example, transcripts filed a separate action are also impermissible hearsay, unless properly authenticated. Delong v. Williams, 232 So. 2d 246, 247 (Fla. 4th DCA 1970). Generally speaking, except for under limited circumstances with proper authentication, unsworn pleadings from another action are not admissible as evidence, and thus, it may be inappropriate to simply admit the contents thereof into evidence through the judicial notice process. Sea Cabin, Inc. v. Scott, Burk, Royce & Harris, P.A., 496 So. 2d 163 (Fla. 4th DCA 1986); Florida Power Corp. v. Zenith Indus. Co., 377 So. 2d 203, 204 at note 1 (Fla. 2d DCA l 979)(“[P]leadings in one action are admissible in another action only under certain circumstances and for certain purposes not pertinent here.”); Tierra Builders, Inc. v. Schwimmer, 511 So. 2d 638, 639 (Fla. 4th DCA 1987 (although “any error in admitting the counterclaim filed by [appellant] in another action was harmless,” dissent noted that “[u]nder Florida law unsworn pleadings from another lawsuit are not admissible unless it is demonstrated that the party against whom the pleadings are to be used supplied the information contained therein”)(emphasis added); Adams v. Merrill Lynch, Pierce, Fenner & Smith, 392 So.2d 4, 5 (Fla. 4th DCA 1980) (“[n]either a complaint nor a counterclaim is admissible in evidence to prove or disprove a fact”). While judicial notice cannot be used as a substitute for presenting admissible evidence, the fact that a pleading was filed would be an appropriate subject of judicial notice.
However, In re: Lisse also provides that state court orders which are part of the public records of the State of Wisconsin were “appropriate subjects of judicial notice.” In re: Lisse, 18-1866, 18-1889 (7th Cir. Sept. 28, 2018) (citing Menominee Indian tribe v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998); Fed. R. Evid. 901 (b)(7). While I believe that this ruling is appropriate if limited to simple judicial notice of the fact that an order was entered by a state court, as recorded, the ruling is problematic as worded. That is, the contents and adjudicative facts contained within an order in another action should never be automatically admissible in a second case through the use of judicial notice, except to show that the order exists. To hold otherwise would result in litigants being held accountable for the handling and litigation of actions to which they were not even involved, which would be grossly inappropriate.
If you are faced with litigation, it is important that you hire an attorney well-versed in the rules of evidence, and in tune with developing legal issues. Jeffrey Law, PA, stands ready to assist. Contact us at: Office@RSJLegal.com or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey has experience handling complex and high asset family law disputes, and has authored chapters in various publications relating to Florida family law. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com. Mr. Jeffrey has been awarded an AV Rating by Martindale-Hubbell (2017 – 2019), as “Peer Rated For Highest Level of Professional Excellence.” Robert was awarded a 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. Seehttps://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.]]>On Behalf of Jeffrey Law, PAhttps://www.rsjlegal.com/?p=460672023-07-04T06:11:24Z2019-02-05T06:00:00ZMigliore v. Migliore, 792 So. 2d 1276 (Fla. 4th DCA 2001). The parties utilize discovery processes and procedures, including the financial affidavit and mandatory disclosure requirements of Fla. Fam. Law R. P. 12.285, to ensure that accurate incomes are utilized in the child support guidelines. More, if a party is voluntarily unemployed or underemployed, income can be imputed to that party.
After establishing a presumptive child support amount pursuant to the child support guidelines, a court can deviate plus or minus 5% from the child support guideline amount without written findings, after considering "all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent." Section 61.30, Fla. Stat. If the Court is to deviate more than 5% from the child support guidelines, the deviation must be expressly justified through written findings "explaining why ordering payment of such guideline amount would be unjust or inappropriate." A contract by the parties to waive or improperly reduce child support may be void, as against public policy, and a Court is not required to enforce it, because child support is the right of the child.
If you need assistance litigating child support issues, contact us today to ensure that your rights are adequately protected! CONTACT US AT: OFFICE@RSJlEGAL.COM or 305.222.7921, to schedule a consultation.
Robert Stone Jeffrey, Esq., is an attorney admitted to the Florida Bar in 2010, the United States District Court for the Middle District of Florida, the United States District Court for the Southern District of Florida, and the Supreme Court of the United States. Mr. Jeffrey is currently a member of the Family Law Section of the Florida Bar Rules and Forms Committee, and has authored numerous publications relating to Florida family law, and other issues. Robert was awarded an AV Rating by Martindale-Hubbell (2017 - 2019), as "Peer Rated For Highest Level of Professional Excellence," along with being recognized as a "Top up and Comer" by South Florida Legal Guide, and a "Rising Star" by Superlawyers.com. Robert has been awarded a perfect 10/10 rating by Avvo.com, and various client reviews can be accessed through that platform. See https://www.avvo.com/attorneys/33134-fl-robert-jeffrey-3341362.html. More information about Mr. Jeffrey, and Jeffrey Law, PA, can be found at www.rsjlegal.com.
This Website is made available for educational purposes only, and is only intended to give you general information and a general understanding of the law, not to provide specific legal advice, or any legal advice whatsoever. By using this Website and reading this Blog you understand and agree that there is no attorney-client relationship between you and the Blog and/or Website publisher. By using this Website and reading this blog you understand and agree that any statements on the Blog are solely opinions of the author(s). This Website and/or Blog should not and cannot be used as a substitute for competent legal advice from an attorney licensed in your state or jurisdiction. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.]]>