Author Archives: Charles B. Jimerson, Esq.
Before filing an eminent domain lawsuit against a property owner, Florida law requires the government or the condemning authority to conduct very specific procedures. These special procedures and considerations are designed to ensure that the taking of any property is valid and that the property owners are given a fair opportunity to resolve the issues with the government before the suit is filed. It is critical for property owners to understand their pre-suit rights throughout this process to obtain full and fair compensation for any taking of their property. Read Full Post
Involuntary bankruptcy is a legal proceeding creditors may use to force a debtor into bankruptcy, rather than a debtor voluntarily seeking bankruptcy protection on its own behalf. Creditors seeking involuntary bankruptcy must file a petition in the bankruptcy court, and the debtor has the opportunity to defend against being forced into bankruptcy. This blog is Part 1 in a two-part series, and will set forth the basics of an involuntary bankruptcy. Part 2 provides tips and strategies for defending against an involuntary bankruptcy petition. Read Full Post
An Overview of Florida’s Deceptive and Unfair Trade Practices Act, Part I: What Is FDUPTA, Who Does It Protect, Why Is It Needed, and What Is Actionable?
Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) was passed by the Florida Legislature in 1973, and was designed as a state law complement to the Federal Trade Commission Act. 15 U.S.C. § 45. FDUTPA, sometimes referred to as the “Little FTC Act,” provides private remedies based on consumer protection law, which encompasses unfair, deceptive, and unconscionable acts or practices. This article, part one of a three-part series, first addresses the purpose of FDUTPA and who the act seeks to protect, why the act is needed, and what is actionable under the act. Read Full Post
Choose Your Own Adventure: Are Florida State Law Claims for the Wrongful Filing of Involuntary Bankruptcy Preempted by 11 U.S.C. Statute 303(i)?
The filing of an involuntary bankruptcy is a serious matter, and creditors rarely resort to this drastic measure when attempting to collect on a debt. The prospect of creditor liability for costs, attorney’s fees, damages, and possibly punitive damages makes involuntary petitions a risky endeavor. Involuntary bankruptcy is most often used when unsecured creditors suspect fraud on the part of a company. Otherwise, creditors typically pursue collection on their own claims directly, including through federal and state litigation. The end result of these collection attempts might actually end up “forcing” the company into bankruptcy, but it would be a voluntary bankruptcy and a creditor would not be subject to the same risks associated with an involuntary petition.
If an involuntary petition fails, the consequences are quite serious. First, once filed, an involuntary petition cannot be dismissed without a notice and an opportunity to be heard, even if the petitioning creditors and the debtor company agree. Further, if the involuntary petition is dismissed, the petitioning creditors can be liable for costs and attorney’s fees of the company. However, the most serious consequence results upon a court finding that the petition was filed in bad faith. In this case, the petitioning creditors can be liable as well for damages caused by the involuntary filing and even for punitive damages. These claims are almost always asserted exclusively in bankruptcy court, but this post examines whether it is appropriate for debtors who are the victim of a bad faith filing to pursue state law claims for damages, including malicious prosecution, abuse of process, and slander in Florida state court. Read on to explore whether these state claims are preempted by the remedy provided in 11 U.S.C. § 303(i) in Florida. Read Full Post
Remedies for Creditors Under FUFTA Chapter 726 – Part II: How Much is a Fraudulent Transferree Liable For?
In Part I of this two-part series, we analyzed who may be liable under Florida’s Uniform Fraudulent Transfer Act (“FUFTA”) and the broad categories of what transferors and transferees may be liable for. In this blog post, we seek to asses exactly what those transferors and transferees may be liable for if a money judgment is imposed. Read Full Post
Simply put, Florida’s Uniform Fraudulent Transfer Act (“FUFTA”) is a “powerful remedy.” See Brandon C. Meadow’s in-depth blog, Are Florida’s Fraudulent Transfer Claims Subject to Equitable Tolling? But what good is this powerful remedy if creditors do not understand what exactly it can do for them in light of misconduct by debtors? This blog post seeks to show creditors what rights and options they have for unwinding transfers and obtaining payback against those who assets were fraudulently transferred to. Read Full Post
In a perfect world, all loans would be performing, and the lead bank and participant would share in the profits of a loan participation with minimal risk of loss. In the real world, a promising participation loan easily becomes a problem loan, and the lead bank and participant bank can find themselves embroiled in litigation against each other. Such litigation puts a substantial strain on the lead bank’s resources to enforce the loan documents against the defaulted debtor, at a time when the parties should be sharing resources for loss mitigation. One common reason a participant may sue a lead bank after borrower default is based upon the participant’s assessment of collectability. If the participant determines that the collateral is worthless or the borrower is otherwise judgment-proof, the participant may look to the lead bank to recover its share of participation in the failed loan. Read Full Post
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
When a party breaches a contract and the contract does not contain a valid liquidated damages clause, the non-breaching party may be entitled to compensatory damages. The appropriate measure of damages arising from a breach of an enforceable contract is usually “the difference between the value expected from the contract and the value actually received by the non-breaching party.” Tenn. Gas Pipeline Co. v. Technip USA Corp., 2008 WL 3876141, at *5 (Tex. Ct. App. 2008). Actual damages flowing from the breach of contract are either “direct” or “consequential.” Direct damages are those that flow naturally and necessarily from the breach and compensate for loss that is presumed to have been foreseen or contemplated by the parties because of the breach. Id. Examples of direct damages include unpaid contract amounts, cost to repair defective work, and reduced project value due to nonconforming work. Consequential damages are damages that “do not necessarily, but do directly, naturally, and proximately result from” the injury for which compensation is sought. Read Full Post
As cities have become increasingly strapped for cash having lost tax revenue from the economic downturn, more and more have turned to public private partnerships (P3s) to achieve their goals and better serve their constituencies. P3s are agreements between a public entity and a private company wherein the company agrees to design, build, finance, operate, and maintain a public facility in exchange for a series of payments over a long term. This has most frequently been seen in Florida in the form of toll roads, but public entities are increasingly choosing the P3 model to better fulfill their other needs, too. Prime candidates for the P3 structure are medical office buildings, parking garages, bus or train depots, mixed use zoning to encourage high density land use, and higher education buildings. Locations with high credit rating and unused real estate benefit are best able to utilize the P3 structure. This article will summarize Florida’s very broad P3 statute and provide a framework to understand this unique and valuable construction scheme. Read Full Post