Florida Estate Planning Lawyer Blog

Due to the recent decision of the Florida Supreme Court, many single-member limited liability company owners have been left confused and upset. The Ohmstead decision expressly eliminated most of the asset protection benefits that single-member LLCs were thought to have. Creditors of the member can use all available remedies to recover their debt, not just the charging lien that was thought to be the sole remedy. Now it may be possible for a creditor to force the sale of LLC assets and seize all management decision-making.

This decision has sparked new ideas on how to protect debtors who are the owner in a single-member LLC. According to one academic, adding an unrelated business partner as a new member could offer protection. This would require the new member receive some consideration such as a share of the profits so that the reorganization would not be a fraudulent transfer. Also, a second option would be to reorganize the LLC in another state with more desirable LLC protections. Some LLC owners may consider converting to limited partnerships to offer a stronger protection that might be available under the current law. The Florida legislature is expected to address this issue in the future to clarify the standing of multimember LLC's

While the decision did not deal with multi-member LLC's, there is language in the opinion that has raised concern with many around the state over the issue of whether a multi-member LLC offers asset protection in Florida. It seems that it might be possible for a creditor to pierce a LLC and foreclosure on the shares, which may not be possible with a limited partnership interest. Given the current uncertainty with asset protection and LLC's in Florida you should have your operating agreements reviewed to make sure that they are updated to include provisions that would not permit a creditor who has taken an interest in the LLC to vote or participate in the business decisions, is not guaranteed any distributions, and any moneys that would be provided to the original members who have creditor problems are use to purchase annuities for that member or are paid in the form of wages if that individual's wages are protected from creditors

Although these options may seem like quick fixes, they are complex and are not guaranteed solutions to the problem because it will take years for appellate courts approve them. If you have any questions about how this decision may affect you, contact a Florida Asset Protection Attorney for help.

A Jacksonville Trial Lawyer can be very helpful in the event that your dispute needs to go to trial. There are many different types of Jacksonville trial attorneys. The Apple Law Firm has Jacksonville Civil Trial lawyers as well as Jacksonville Criminal Trial Lawyers. We Deal with Family law, criminal, trust, will, estate planning, foreclosure defense, probate, guardianship, and asset protection issues. Many cases never go to trial and are settled by a Jacksonville Trial Attorney long before seeing a court room. If you would like t discuss your circumstances or what options you have to protect your rights please contact a Jacksonville Trial Attorney today.

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

Attorney Kevin W Davidson of the Green Bay Wills, Trusts & Estate Planning Blog wrote an article on the pitfalls of Do it yourself asset protection where he talks about some of the problems with trying to protect your own assets.

Over the last 6 months the number of inquiries for asset protection have significantly increased. Unfortunately most of these people did not take action when they had significant assets without potential liabilities, but are only now beginning to consider it as the liabilities become a certainty. While there are things that can be done at this stage to protect, reduce the risk of loss, or increase the ability to negotiate one's debts, it is always best to address these issues prior to problems arising.

If you would like to discuss Florida Asset Protection you should Contact a Florida Asset Protection Lawyer.

If you are using a payroll service, payroll company, or payroll agent, you should be careful because the IRS has taken the position that a business is on the hook for unemployment taxes if the payroll agent goes bankrupt. Among the steps the IRS has recommended are the following:

1. Make sure the agent has posted a fiduciary bond;
2. Insist that all IRS correspondence regarding your company’s payroll taxes come to you, not to your payroll agent; and
3. Make sure that your payroll agent deposits your taxes electronically so that it will be easy for you to check your bank statements to make sure the payments were made.

Jay Shepherd who writes the Gruntled Employees Blog has a good article on the "Eight Ways to Lose a Noncompete Case." Here is his list of the 8 most common ways companies to lose a noncompete case:

1. Putting too much faith in the belief that the court will enforce the language of the noncompete agreement as written.
2. Trying to enforce a noncompete against employees who really don't possess any confidential information or customer relationships.
3. Drafting the noncompete too broadly.
4. Focusing only on geography, duration, and scope of the noncompete rather than on the existence of protectable interests.
5. Waiting too long to file.
6. Asking for an injunction before you've developed enough evidence.
7. Filing in the wrong jurisdiction.
8. Focusing on the law instead of on the story of the case.

Jay's bottom line is that "If your client's wearing the white hat, and your agreement is narrowly drafted, and your secrets or customer relationships are in imminent peril, then you've got a fighting chance of winning. Otherwise, wave goodbye to the former employee and get back to work."

While many of these are true in Florida, when there is a protectable business interest, most Florida Courts are willing to rewrite the agreement and make some of it enforceable. If you would like your non-compete agreement reviewed, Contact a Florida Non-Compete Lawyer.

The Wills, Trusts, and Estates Prof Blog had a posting on an unusual motion by a pro se plaintiff. In the case Washington v. AA. Allamo, the judge imposed sanctions on the plaintiff for filing a motion entitled "Motion to Kiss My Ass".

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 Jacksonville 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. Most at-will employment agreement can be terminated by either party at any time for any reason. Some Jacksonville employment agreements are for a fixed term (e.g., a six-months or 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. Florida 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.

5. Classification. Employment agreements often reference an employees status as exempt or non-exempt. In some cases employees are classified as independent contractors. Whether or not an employee is an independent contractor, an employee, exempt, or non-exempt is often a factual analysis of the interactions amongst employees and their employers.

6. Nondisclosure Agreements. Employment agreements can contain prohibitions on the disclosure of the employer’s confidential or proprietary information to a third party. An employee needs to know what information the employer considers to be confidential or proprietary. Employers need to notify employees what information they consider confidential or proprietary.

7. Non-compete Agreements: can contain provisions limiting an employee’s right to compete with the employer, both during and after employment. The provision should specify activities in which the employee may not engage. In Florida the geographic scope of the restrictions must be reasonable. Terms of non-compete agreements are limited in Florida, most agreements that are in excess of 2 years are considered unreasonable and the court may shorten the term.

8. Non-solicitation Agreements. Along with non-compete provisions, some employment agreements contain prohibitions on soliciting the employer’s customers, its employees, and/or its vendors. In Florida, these provisions are enforceable.

9. Change in Control. What happens if the employer is purchased by another company? Should that affect the employee’s obligations? Should the employee be able to escape his non-compete and non-solicitation obligations? On a related note, should the employer be able to assign the agreement to another company (so that the “new” company can enforce the employee’s non-compete and non-solicitation obligations)? Employment agreements don’t always address these issues, but employees are wise to think about them.

10. Arbitration. Employment agreements often state that legal disputes between employers and employees must be submitted to binding arbitration (versus being litigated in court). Provisions like this can be one-sided (i.e., sometimes, only the employee is required to arbitrate its disputes, whereas the employer can go to court). Employers need to be mindful of the effects of agreeing to arbitrate disputes as opposed to litigate them.

11. Choice of Law and Forum Selection. Employment agreements usually specify the state whose law will govern the agreement and the place where suit must be filed in the event of a legal dispute. The latter can be especially problematic for an employee, because it may require her to bring any claims she may have in a foreign state, which can be very expensive.

Recently an Australia Judge allowed a defendant in a law suit to be served copies of court papers by their Facebook account. The Legal Blog Watch has an article posted by Carolyn Elefant - Court Papers Served By Facebook

After the judge was satisfied that the defendant was the same person who owned the Facebook account and the defendant was unable to be located, the judge allowed the defendant to be served through their Facebook account.

When is a Jacksonville Mediator helpful in resolving a Florida lawsuit?

After your Jacksonville attorney has filed suit, or you have been served with one you may quickly find that thousands of dollars are spend in attorney’s fees and costs. There are fees for pleadings and counter-pleadings, requests and responses to interrogatories and requests for admissions, depositions and motion hearings. Typically after all of these fees your attorney sets the case for trial only to then inform you that the court has ordered mediation by a Florida Mediator.

Florida Clients often ask, Why are they are now having to meet with the other party to discuss settlement after paying all this money and waiting all this time for a trial? They wonder if they could have met much earlier in process and saved thousands of dollars. If you are in a lawsuit you should ask your Florida Lawyer early if the court will be ordering a mediation and when the proper time to have the mediation would be. Often an early mediation can save both sides substantial fees and lead to a good resolution of the issues involved in the case.

Florida Mediators are regulated by the Dispute Resolution Center of the Office of the State Courts Administrator, which is part of the Supreme Court of Florida. There are a variety of mediator designations, as follows: civil circuit (not including family), family, county civil and dependency. The primary laws that apply to mediation include Florida Statutes Chapter 44 and Florida Rules for Certified & Court-Appointed Mediators.

Ask your Jacksonville Lawyer which Florida mediator he or she will recommend and why. Often the Jacksonville Lawyers appear for the hearing to set the case for trial, and have not thought about the benefits of a Florida mediator. When the court asks them who they want to mediate, the attorneys then shoot from the hip having not previously discussed it.

The choice of a Jacksonville Mediator is crucial, as the case may settle at mediation saving you, the litigant, the uncertainty of the outcome, thousands in attorney’s fees and costs by avoiding trial preparation, expert witness fees, court reporter fees, the trial, and, if you lose, the cost of an appeal. Make sure the mediator has a working background in the subject matter of the lawsuit. For example, if the lawsuit is a real estate dispute, the mediator could better understand the issues if the mediator had experience in actually conducting real estate transactions.

For questions or comments on the use or selection of a Florida Mediator, contact Michael S. Price, Esq., Circuit Civil Mediator, 1616 Jork Rd., Suite 102, Jacksonville, FL 32207; telephone (904) 396-4445; E-mail mpriceatty@bellsouth.net who focuses on disputes related to real estate, contracts, construction, leasing, foreclosure, property defects, binder deposits, and disputes related to business, partnerships and shareholders.

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

The FDIC has extended FULL insurance coverage to all Florida IOTA trust accounts, regardless of amount on deposit or number of clients. The unlimited FDIC insurance is available at all financial institutions that participate in the FDIC's Transaction Account Guarantee Program. Please make sure that you comply with the trust accounting rules by placing all short term or nominal funds of clients and third parties in your IOTA trust account. Those funds, which are incapable of generating income for individuals, in excess of the costs to secure that income, are pooled in IOTA accounts the interest from which provides legal services for the poor and other law-related public interest programs approved by the Florida Supreme Court. If you have any questions about your ethical responsibilities relating to your trust account, please call the Bar's Ethics and Advertising Department at (800) 235-8619. If you have any questions about the mechanics of setting up an IOTA trust account or how the IOTA funds are used, please call The Florida Bar Foundation at (800) 541-2195.

Florida Statute 193.1556 requires that any changes regarding a person or entity owning real property under Florida Statute 193.1554 or Florida Statute 193.1555 are reported to the property appraiser.

This may affect some Florida Enhanced Life Estate Deeds. Under Florida Statute 193.1554(5), If the property is nonhomestead residential property, there is an exemption for the transfer between husband and wife, including transfer to a surviving spouse or a transfer due to a dissolution of marriage. The transfer to a revocable trust will not trigger a new assessment at fair market value.

On the other hand for all residential and non-residential property which is not protected by homestead there doesn't appear to be the same exemption under Florida Statute 193.1555(5).

In either case the transfer to a Florida Revocable Trust where there is simply a change between legal and equitable title, will not trigger a new assessment at fair market value.

One new issue is that it is now required to report a change in ownership or control when a business entity owns property. In the past, many were able to sell an entity and no notice to re-evaluate the taxable base would be generated. Now if you convert real property to personal property by selling the ownership in an LLC instead of the real estate holdings of the LLC, you still have to report the change in ownership.

To read more on Florida Enhanced Life Estate Deeds or Florida Revocable Living Trusts read some of the articles on this site or Contact a Jacksonville Estate Planning Lawyer

In my previous life, I had a license to build Apple Clones. It is for this reason that I have been watching the actions of a Florida Company, Psystar, Inc. They have been installing Apple, Inc.'s most recent operating system on generic computers and selling them to the public as "Apple Clones". Apple's software license states that its software can only be installed on computers which were preinstalled with a previous version of Apple's operating system. Apple started including this provision when it switched from version 7.6 to the 8.0 version. An even that effectively ended cloning back in the late 1990's.

At that time my company PowerTools also purchased retail copies of the current operating system and installed them on our Apple Clone Computers. That is we installed version 8.0 of the Operating System on our Apple Clones which were licensed for version 7.6 of the Macintosh OS. Unline Psystar, PowerTools' clone had a legal version of the Macintosh OS preinstalled. Because of this Apple "allegedly" went to our supplier and had our OEM agreement terminated.

This is why I have been so interested in what Psystar has been doing. It appears to be a clear violation of the Macintosh operating system license.

It will be interesting to see Psystar's explanation of why they believe they can use the Mac OS in violation of the licensing agreement.

The Gray Blog first reported news of the suit against Pystar.

Florida LLC's are one of the best choices for a new business entity. When thinking of forming a company, may people only look for low taxes and protection from liability.

Unfortunately, many are misinformed as to the protection that a corporation can offer. While it is true that a corporation and a Limited liability company can both protect a persons personal assets from corporate liability (in most cases), only the properly created Florida LLC can protect your business assets from personal liability.

If someone sues you and wins, they can take your stock in your corporation just like they could take your stock in GM. Once they own your stock, they can sell the company, fire you, and liquidate the company. If this happened to you it could cost you your livelihood.

To protect against this many people now use limited liability companies in Florida. If the LLC is properly created you can be protect from judgments, reduce the risk of lawsuits, and still be taxed as a partnership or an S-Corp. Yes you can be a LLC but choose to be taxed as a S-Corp.

While legal Zoom will let you create a Corporation or LLC online in almost any state, they can not evaluate your personal circumstances, and make recommendations on how to set up the LLC to offer you the protections under Florida Laws. I have seen many LLC's created by Legal Zoom which failed to take advantage of these protections.

In addition, I have noticed that the people who use these services do not understand the importance of acting like a business entity. They rarely have meetings or authorize actions by the board members or officers. These actions can create prevent the business entity from protecting the owners, directors, and shareholders from personal liability.

Part of what your lawyer should do is understand your circumstances, and design an entity to protect your needs and interests. At the same time, the attorney should educate you on how to take advantage of the protections offered. just because your form an LLC or Corporation does not mean you are protected.

To discuss how to use your business entity to protect your personal assets and protect your business assets from the owners personal liability you should Contact a Florida Business and Asset Protection Lawyer

Seven weeks ago, I got a new puppy. I was thinking of a way to protect myself from Florida's Strict Liability for Dog Bites. Most states have a one free bite rule, but Florida does not and makes the owner of the Dog liable for all damage by the dog from the first bite.

In walks the Florida Revocable Trust. I began thinking that if you set up a separate revocable trust that owned the dog, you could transfer the liability of the dog's future actions to the revocable trust.

I began reading the Florida Statutes and sure enough the statute states that the "owner" is the party liable. Figuring that this must be too easy, I kept reading. It seems that when the state creates statutes, the often hide the real details in some other part of the statute. Sure enough after a few minutes I found that "Owner" as defined in the statute means any person, firm, corporation, or organization possessing, harboring, keeping, or having control or custody of an animal or, if the animal is owned by a person under the age of 18, that person's parent or guardian.

So while the trust would be liable as the owner, so would the person who the animal was staying with and the person keeping the animal, and the person in control or custody of the animal at the time of the attack.

So what did I learn from this exercise? You should be very careful when offering to take care of someone's pet while they are out of town as the person in control and / or custody is just a liable as the person or entity that owns the animal. More over your homeowners insurance may cover your liability as an owner, but I am not sure if they would cover damage caused by a pet that you did not own.

The only other way to protect yourself from liability is to have good insurance and / or protect your other assets.

To discuss potential sources of liability that you can help protect your self and your families assets from, you should contact a Florida Asset Protection Lawyer or read more on Florida Asset Protection

Here is a list of links that should be useful for anyone starting or running a business in Florida.

Florida state and local links

• MyFlorida.com

State Portal

• Licensing Portal

City Guides

• Jacksonville Florida City Guide
• Miami Florida City Guide
• Orlando Florida City Guide
• Panama City Florida City Guide
• Tampa Florida City Guide

Statewide Offices

• Governor


• Lt. Governor
• Attorney General


• Secretary of State
• Treasurer and Insurance Commissioner

Legislative Branch

• Florida Legislature
• Auditor General


• Office of Program Policy Analysis and Government Accountability
• Florida Monitor: Government Accountability Report

Continue reading "Florida State and Local Government links" »