Florida Estate Planning Lawyer Blog

About a year ago Costco changed their return policy on Electronics. Their prior policy was that all electronics had a lifetime warranty and satisfaction guarantee. Simply keep your receipt and they would refund the full price paid if your product ever broke or needed to be returned for any reason. Although this policy may have been questionable it is what the Costco policy was. Because of this many individuals paid extra money to purchase items from Costco over other retailers because they stood behind their products.

Lately I have had several problem with their policy on older items and was wondering if anyone else has had similar experiences. We are looking for individuals in California, Texas, Florida and other states who have had similar experiences.

Basically what is happening is that Costco does not want to honor their previous warranty and offers a lower refund than what was paid. Sometimes this is $1000.00 or more less than what your refund should have been. If this has happened to you, please Contact a Florida Breach of Contract Lawyerso that we can discuss how to get your additional funds back to you.

Jacksonville Criminal Defense Lawyer, Cynthia Veintemillas, wrote an interesting article about Criminal Liability and the Florida Pet Lemon Law. If you are in the business of buying or selling pets in Florida you may want to have your Florida contracts reviewed for compliance with the Florida Pet lemon Law. Contact a Jacksonville, Florida Pet Lemon Law Attorney for more information

Chames v. Demavo, 32 Fla. L. Weekly S820 CR. Sup. Ct. December 20, 2007

An attorney owed fees from his clients under a retainer agreement attempted to enforce a lien against the homestead of the clients. The retainer agreement had expressly waived the parties’ constitutional homestead protection against claims of creditors.

Asking the Court to recede from prior Florida precedent in Carter and Sherbill, the appellant argued the 1995 constitutional amendment removing "head of family" changed the purpose of the creditor protection, that the trend in other states was to permit waivers, and permitting the waiver was consistent with other precedent allowing waivers.

The Court rejected the arguments of the waiver and concluded "the waiver of the homestead exemption will become an everyday part of contract language for everything from hiring of counsel to purchasing cellular telephone services ... [which will inevitably result in whittling away this century old constitutional exemption until it becomes little more than a distant memory."

A waiver of your homestead rights in a contract is still not valid in Florida (except with regards to pre and post nuptial agreements).

Often after leaving your job your previous employer will try to hold you to the terms of a non-compete or non-solicitation agreement. An important part of determining the enforceability of the agreement is whether you can afford to defend a suit by the employer.
Although many non-compete agreements are not enforceable as written, courts will see if there is a way to reduce the scope by limiting the time, range of activities restricted, or the geographic restrictions if there is a legitimate business interest that the business is trying to protect.

There are many defenses to non-compete agreements and if you are willing to fight there is a chance you can settle or will a case. The best defense is to review and structure your agreement prior to executing it. It is important to have your agreement reviewed by a Florida Non-compete Attorney or a Florida Non-solicition Lawyer to determine what your chances of prevailing are.

Over the last weekend I tried to keep up with various websites. While Visiting Universal in Orlando with my family I say a posting by Michale with The Ohio Trust & Estate Blog and thought you might enjoy it also.

While credit is tight and many Jacksonville consumers are facing foreclosure on their homes, and attempts to collect old credit card debts, companies have been trying to use waiver of you homestead to collect debts. For over 100 years Jacksonville residents and those living in Florida have had been able to protect their home from claims of creditors. Arguably the home is one of the most valuable assets a Florida resident has. Recently there has been concern over the ability of a homeowner to waive their right to protection. The Florida courts have allowed people to waive many of their constitutionally protected rights, but up to now a waiver of ones Florida homestead protection was invalid except in the case of a valid pre or post nuptial agreement. This case represented the most recent attempt to allow waiver of ones constitutionally protected homestead protection.

In a case involving the Florida Constitution's exemption which protects homeowners' residences from forced sale, the Supreme Court of Florida reaffirms that, while the exemption can be waived in a mortgage, it cannot be waived in an unsecured agreement. The court rejects claims that it should recede from its precedent based on a constitutional amendment, a purported national trend approving such waivers, and recent holdings that other constitutional rights can be waived.
To review the case and the extensive analysis the Florida Supreme Court took read Chames v. Demayo

If you are having problems with collection agents trying to collect debts, credit card debts, or other types of debts, contact a Florida Business Lawyer, or Jacksonville Consumer Debt Lawyer.

For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

As a Jacksonville Florida non-compete Lawyer, I often am asked about some of the provisions that are contained in a Florida employment agreement. I found an article on the Texas Non-Compete Law Blog, entitled Texas Executive Employment Agreements: Checklist for Employees and thought that the information would be relevant to my Florida Clients. I have based this information on what was contained in that article, but modified removed some information and added some that is specific to Jacksonville and throughout Florida .

1. Term of Employment. Employment agreements are either for a fixed term or at-will. An at-will employment agreement can be terminated by either party at any time for any reason. Some employment agreements that are purportedly for a fixed term (e.g., a one-year term) also contain provisions pursuant to which the employer may terminate the employee “for any reason” on shorter notice (e.g., “thirty days’ notice”)—such an agreement is in reality a 30-day employment contract.

2. Position, job duties, location. Employment agreements routinely contain provisions outlining what the employee’s title will be, what their duties will be, who the supervisor will be, and where the work will be performed.

3. Compensation. Employment agreements often reference compensation or salary and sometimes discretionary compensation (e.g. bonuses and stock options).

4. Termination for Cause. Employment agreements often provide that an employee may be terminated for “cause,” and “cause” is defined to include various acts or omissions by the employee. Some acts—like commission of a felony and embezzlement of company funds are fairly easy to understand. However, defining “cause” to include the employee’s failure to perform his/her job duties can be difficult because this can be subjective. Employees want what a clear non subjective definition of cause.

Continue reading "Florida Employment Agreements: Terms and Conditions" »

As a Jacksonville Florida Contracts & Business Lawyer, I often get asked about Florida Business contracts that are broken. Often when we sit down and look at the Florida contract it is evident that there never was a contract as defined in Florida.

When there is not a contract there are other methods of recovery. One of these is Unjust Enrichment and the Florida Supreme Court has defined the elements of the unjust enrichment claim as (i) a benefit conferred upon a defendant by the plaintiff, (ii) the defendant’s appreciation of the benefit, and (iii) the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.

The courts in Jacksonville and the 1st DCA use the following elements for unjust enrichment:

1. plaintiff has conferred a benefit on the defendant, who has knowledge thereof;
2. defendant voluntarily accepts and retains the benefit conferred; and
3. the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.

The Statute of Limitations for unjust enrichment in Florida is (4) four years per Fla. Stat. §95.11(3)(k);

There are several recognized defenses to unjust enrichment. These include:

1) Express Contract: An action for unjust enrichment fails upon a showing that an express contract exists
2) Payment Made: Unjust enrichment cannot exist where payment has been made for the benefit conferred
3) Received in Good Faith: The law seems to be settled that money paid under a mistake of facts cannot be reclaimed where the plaintiff has derived a substantial benefit from the payment, nor where the defendant received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience.

To have a valid contract there must be an offer, acceptance, and consideration.
If you feel that you are dealing with a breach of contract and have suffered damages as a result, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve Contract disputes. These disputes can be between employees and employers, companies and their suppliers, or individuals and contractors.

Definition: failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work ("anticipatory breach"). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered "specific performance" of the contract.

Elements Cause of Action - 1st DCA
It is elementary that in order to recover on a claim for breach of contract the burden is upon the claimant to prove by a preponderance of the evidence the existence of a contract, a breach thereof and damages flowing from the breach.

To have a valid contract there must be an offer, acceptance, and consideration.
If you feel that you are dealing with a breach of contract and have suffered damages as a result, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involved Tortious Interference with a Contractual Right along with Claims for Beach of a Florida non-compete agreement. The elements of this cause of action are

1) The existence of contract to which plaintiff is a party;
2) Defendant's knowledge of the contract;
3) Defendant's intentional procurement of the contract's breach;
4) The absence of justification or privilege; and
5) Plaintiff suffered damages resulting from the breach.

Tortious interference with a contract is virtually identical to the elements of a claim for tortious interference with a business relationship.

There are many defenses to Tortious Interference with a Contractual Right. They include

1) Affirmative defenses
2) Statute of limitations - four years
3) Defendant is not liable where she did not "intentionally" interfere with plaintiff's business relationship.
4) Acts occurring during a judicial proceeding are absolutely privileged and cannot give rise to tortious interference claims.
5) When the contract provision expressly reserves the right of interference.
6) Agent that gives, on request by his or her principal "honest advise" in his or her principal's best interest.
7) Plaintiff cant bring action against party of the contract at issue.
8 )Privileged or justified conduct does not give rise to Tortious interference claim.
9) Defendant acting to protect her own economic or financial interest is not liavle for tortious interference.
10) Plaintiff cannot premise claim on alleged interference with a contract that is terminable at will provided that interference is lawful competition.
11) Defendant's settlement of a lawsuit that adversely affects plaintiff's business interest does not give rise to Tortious interference claim.

If you feel that an employee has breached their Florida Non-Compete Agreement or has interfered with a contract between you and a client, you should discuss the facts and circumstances with a Florida Business Lawyer.