Yearly Archives: 2016

Key Considerations in Hiring an Employee Subject to a Non-Compete: Part II

As discussed in Part I of this blog series, some of the most qualified candidates for employment are often current or former employees of competitors in your industry. Non-compete agreements are helpful to employers who wish to control and limit the competitive activities that an employee may engage in after his or her employment ends. Once an employer has decided to offer employment to a current or former employee of a competitor, these are the most important considerations to make. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas:

The Apex Doctrine: What Is It and How Does It Affect Companies?

While a case is being litigated, the Florida Rules of Civil Procedure provide that a party may take the deposition of any person. When deposing a corporate party on general issues, the business designates a corporate representative to speak for it. However, parties deposing corporations, in all variety of cases, will sometimes demand that the president, CEO, or another high-ranking official sit for deposition. These employees are commonly referred to as “apex employees.” Obviously, these high-ranking officers of the company will sometimes have information relevant to the case. However, sometimes a party will seek to depose an opposing party’s apex employee simply to inconvenience and/or harass him, or in order to gain a tactical advantage: the officer may have to disrupt a busy schedule, or may have to travel a great distance at a substantial cost. The deposing party may also try to somehow embarrass the officer, which could potentially damage the company. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas: ,

Community Development Districts in Florida: General Considerations

A Community Development District (“CDD”) is a governmental unit created to serve the long-term specific needs of a community. Created under Chapter 190 of the Florida Statutes, a CDD’s main powers are to plan, finance, construct, operate and maintain community-wide infrastructure and services specifically for the benefit of its residents. There are over 600 CDD’s in Florida and many of the current CDD’s were established between the housing boom of 2003-2008. Part 1 of this 4 part blog will discuss general aspects and considerations of CDDs in Florida. Read Full Post

CATEGORY: Florida Community Association Law Blog Practice Areas: ,

When Government Actions Rise to Inverse Condemnation Claims

Eminent domain is a legal proceeding brought by the government, or an entity acting on behalf of the government, where the government actor asserts its authority to condemn private property for public use. Lingle v. Chevron, 544 U.S. 528 (2005). Under the U.S. and Florida Constitutions, the government can take private property only in limited situations and must pay the private property owner just compensation for the land it takes. But what happens when there is a de facto governmental taking of private property without any eminent domain proceedings and no just compensation paid to the property owner? What recourse does the property owner have after-the-fact? The available remedy is called inverse condemnation. Read Full Post

CATEGORY: Florida Eminent Domain Law Blog Practice Areas: , ,

Can a Condominium Association Face a Second Foreclosure Suit?

The Florida Supreme Court’s recent decision in Bartram v. U.S. National Bank Association is instructive for condominium associations and community managers dealing with a unit in foreclosure, including those trying to determine whether or not to appear and defend a foreclosure by the lender, even though it does not deal directly with a condominium or the Florida Condominium Act. Read Full Post

CATEGORY: Florida Community Association Law Blog Practice Areas: , ,

Requirements for Contracts Entered Into by Florida Condominium Associations

Contracting with vendors and service providers is part of the normal course of business for many condominium associations in Florida. Generally, section 718.3026, Florida Statutes provides for certain requirements when an association contracts for products and services. If a contract for the purchase, lease, or renting of materials or equipment, or for the provision of services, requires payment by the association in the aggregate that exceeds 5 percent (5%) of the total annual budget (including reserves), the association shall obtain competitive bids for the materials, equipment, or services. Nothing contained in the Statute requires the association to accept the lowest bid for the products or services. When analyzing the bids for the work, the association can consider such factors as quality of the vendor, responsiveness of the vendor, and any other non-monetary factors. The board members will generally be protected for such decisions under the business judgment rule. Read Full Post

CATEGORY: Florida Community Association Law Blog Practice Areas:

Eminent Domain in Florida: Recovery of Attorney Fees

Roadwork and other governmental projects are prevalent in Florida and often require the government to acquire private property. Both the Florida Constitution and the United States Constitution provide that no private property shall be taken for a public purpose without full compensation. A land owner’s constitutional right to full compensation for property taken by the government includes the ability to recover reasonable attorneys’ fees in the process. JEA v. Williams. The ability to recover attorneys’ fees, even in pre-suit negotiations, is an important consideration for owners when dealing with a government entity seeking to acquire the owner’s real property. Read Full Post

CATEGORY: Florida Eminent Domain Law Blog Practice Areas: , ,

Conditional vs. Unconditional Payment Bonds in Florida

A payment bond is a security posted by the general contractor that ensures that payments will be made to subcontractors, sub-subcontractors, and material providers for services or products provided on private and public construction projects. The amount posted to exempt the owner needs to be in at least the amount of the original contract. While payment bonds are most commonly associated with public projects, which are governed by Chapter 255 (“Florida’s Little Miller Act”), Chapter 713 governs payment bonds on private construction projects. In such case, there are two types of bonds that can be obtained to exempt an owner. This blog post will cover general considerations for unconditional and conditional payment bonds. Read Full Post

CATEGORY: Florida Construction Industry Law Blog

Electronic Evidence, eDiscovery Case Law and the Attorney’s Role – Part I

The purpose of discovery within litigation is to uncover and ascertain the facts of a matter in order to argue the law based on those facts, and ultimately resolve the dispute before the court. In today’s world, evidentiary facts are often in digital form. The Internet of Things[1] connects common objects in our homes, places of work, and all points in between to the internet as information gathering sources. (Home alarm systems are a great example, which can track who arrives and departs from home and when; assigning distinct codes to each member of a household and sending text messages when the alarm is armed or disarmed.) Further, when people are moving from one place to the next, a large majority carry computers (mobile devices) around with them. For example, our smart phones tell us (and anyone else with access to our device) the best route to take to work and track where we park our cars. We are constantly plugged in, and therefore constantly creating a record of everything we do in what becomes digital/electronic evidence that is relevant if and when litigation arises. For more examples of electronic evidence, consider black boxes in vehicles, sensors, security cameras, home appliances, social media, websites, mobile devices, text messages, voice mail messages, chat history, e-mail, electronic documents and spreadsheets, mobile apps and games, and more. Handling all of this electronic evidence within the context of litigation is called Electronic Discovery (“eDiscovery” or “E-Discovery”). Read Full Post

CATEGORY: Florida Business Litigation Blog

Jury Instructions in Florida Contract and Business Disputes

Jury instructions are integral to facilitating each juror’s understanding of the law and the way in which to apply the law, when rendering a verdict following a jury trial. However, until just years ago, Florida lacked the substantive backing of jury instructions that were drafted with the specific intent to be utilized during contract and business law disputes. As standard jury instructions failed to properly guide jurors regarding what issues were of importance in their deliberations, naturally, parties subject to dispute found that jury trials failed to resolve matters in a way that promulgated equitable results to those involved. As we often take breach of contract cases to trial, these jury instructions will be pivotal for our practice at Jimerson Birr moving forward. Read Full Post

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