Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion!  Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis.

Florida Rule of Appellate Procedure 9.400 governs appellate costs and fees.   This Rule provides:

(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include

(1) fees for filing and service of process;

(2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;

(3) bond premiums; and

(4) other costs permitted by law.

Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order. If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court.

(b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not later than:

(1) in appeals, the time for service of the reply brief; or

(2) in original proceedings, the time for service of the petitioner’s reply to the response to the petition.

The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce payment.

(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.

The entitlement to attorney’s fees must be supported by a statutory or contractual basis. State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007).   It is incumbent on a party to timely file a motion for appellate attorney’s fees if they want to recover attorney’s fees relating to the appeal.  An appellate court has jurisdiction to award appellate attorney’s fees. Bartow HMA, LLC v. Kirkland, 146 So.3d 1213, 1215 (Fla. 2d DCA 2014).   “Once the appellate court determines that an award of appellate attorney’s fees is appropriate, a mandate is issued to the trial court to impose the fees after conducting a hearing. Absent a mandate, the trial court has no jurisdiction to award appellate attorney’s fees.” Respiratory Care Services, Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5^th DCA 1998).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Seller’s Remorse? We all have experienced buyer’s remorse in some fashion, but what about seller’s remorse? Perhaps talked about less than buyer’s remorse, but sellers can have regrets too.   This, however, does not mean that a seller’s remorse can go consequence-free, particularly when the seller backs out of a deal or sabotages the deal because of seller’s remorse.  For instance, what if a seller of real property signs a deal to sell her property and then realizes she could have gotten some more money for the same property? Can she simply back out of the deal or proactively prevent certain conditions from occurring that are required to consummate the transaction? Is this type of bad faith accepted?

Head v. Sorensen, 42 Fla. L. Weekly D1380 (Fla. 2d DCA 2017) is a case that touches on seller’s remorse in the context of a seller of a condominium unit backing out of a signed deal and undertaking efforts to prevent conditions from occurring required to consummate the transaction.   The seller and buyer signed a purchase and sale contract for $405,000 with closing to occur 2 months later. A day or so later, the seller received a call from another owner in the condominium that told her that her sale price was too low and she could have gotten more money.  Based on this call, the seller signed a cancellation of contract and sent it to the buyer. The buyer refused to sign the cancellation and indicated his intent to close on the unit.

The purchase and sale contract provided that the sale was conditioned on the condominium association’s approval. This is not an uncommon rider to a purchase and sale contract. The buyer filed his application with the association for the requisite approval. However, the seller, because she wanted the deal to die, contacted the association and told them that she did not want to go through with the transaction and there were legal issues that that might prevent closing from taking place (although she never explained what those legal issues were). She also told the association to investigate the buyer’s ability to pay costs associated with the condominium. The association then rejected the contract based on the purported low sales price prompting the buyer to sue claiming, among other counts, breach of contract and specific performance.

The seller argued that the condition to closing—the association’s approval—did not occur so the buyer could not close on the unit.   The seller also creatively argued that the contract terminated by its own terms because there was a title defect (the association’s lack of approval) that rendered the title to the unit unmarketable and this defect was not cured.   The title commitment / defect provision is standard in real estate contracts that allows the buyer to notify the seller prior to closing of any title defects; the seller then has time to cure the title defects. If the seller cannot cure the defects after reasonable diligent effort, the contract terminates.

While the contract and closing was conditioned on the association’s approval, the problem was that the seller proactively assisted the association’s rejection of the buyer and deal, or proactively ensured that the condition would not occur. Naturally, the buyer’s title commitment reflected the association’s approval as a closing condition. The seller certainly didn’t go out of her way to ensure the association would approve the sale, which a seller would typically do when they have a buyer in place and a relatively short closing time. Had the seller sold the sale to the association, or not actively hindered the association from approving the buyer and transaction, the association probably would have approved the deal and any title defect would be removed.

Surprisingly, based on these facts, the trial court granted summary judgment in favor of the seller. On appeal, the Second District reversed stating:

When there are questions of fact as to whether one party to a contract has acted in bad faith by helping to procure an event that would cause the contract to terminate, summary judgment in favor of that party is improper….Here, such questions do exist. Therefore, Sorensen [seller] was not entitled to summary judgment in her favor on the issue of whether the contract terminated under the condominium rider, and the trial court erred by entering final summary judgment….

***

To limit the buyer to just the return of his deposit creates an incentive for the seller to dishonor the contract: “This seems to us to come perilously close to arguing that the sellers, after entering into a solemn agreement, could glibly dishonor it and restrict the buyer to regaining what was in practical effect already his, inasmuch as the transaction was not consummated and the sellers were therefore not entitled to the money.”… Creating an incentive for a seller to breach the contract is anathema to the law.

Head, supra, (internal citations omitted).

Seller’s remorse has consequences, particularly when the seller proactively ensures conditions associated with the deal do not occur.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Business relationships are important.  It is all about relationships in all walks of life!  What if someone interferes with your business relationship?  What if that interference is intentional or unjustifiable?

There is a cause of action known as tortious interference with a business relationship. Monco Enterprises, Inc. v. Ziebart Corp., 673 So.2d 491 (Fla. 1^st DCA 1996) (“Tort liability for interference with prospective contractual relationships is generally recognized.”)

A plaintiff asserting this cause of action must PROVE the following elements:

(1) The existence of a business relationship;

(2) The defendant had knowledge of the business relationship;

(3) The defendant intentionally and unjustifiably interfered with the business relationship; and

(4) The plaintiff has been damaged as the result of the intentional and unjustifiable interference.

Southeastern Integrated Medical, P.L. v. North Florida Women’s Physicians, P.A., 50 So.3d 21, 23 (Fla. 1^st DCA 2010); Harllee v. Professional Service Industries, Inc., 619 So.2d 298, 299-300 (Fla. 3d DCA 1992).

“An action for tortious interference with a prospective business relationship requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.” ISS Cleaning Services Group, Inc. v. Cosby, 745 So.2d 460, 462 (Fla. 4^th DCA 1999).  

The claim requires a tortious interference with present or prospective customers or relationships and not the community at large; for this reason, the claim requires an “actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla. 1994); see also Ferguson Transp., Inc. v. North American Van Lines, Inc., 687 So.2d 821 (Fla. 1996) (plaintiff must prove business relationship with identifiable customers to support claim for tortious interference with a business relationship).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Woo-hoo! I got a real good J-O-B! Great pay. Great benefits. Great location. Doing what I want to be doing with my skillset. My new employer wants me to sign an employment agreement, but I have signed such agreements in the past, so this is no big deal. Or, is it a big deal?

There are many professions that want certain employees to sign an employment agreement that includes a restrictive covenant, i.e., anti-compete or anti-solicitation language. The employer does not want to train the employee, give the employee access to its trade secret information, customer lists, internal marketing material, pricing lists, or other business data only for the employee to leave and use that acquired information to start-up his/her own business or work for a competitor. From a common sense standpoint, this makes sense. No one wants to invest in an employee that leaves and takes what he/she learned to a rival company or to start a competitor.

All too often, the employee does not really understand the implications of the restrictive covenant language he/she is signing. The mindset is if I don’t sign the employment agreement I will not be hired and the money or opportunity or location is way too good to pass up. All of this may be 100% true.  But, this does not mean you should not truly appreciate the implications of such language or try to negotiate the language to more favorable terms (if possible).  The fact that you are in a position asked to sign an employment agreement means you have had other jobs in the past or are viewing this job as a stepping stone opportunity. You know there is a lot that could happen: you don’t like the job, the job isn’t what you thought it was, a better opportunity surfaces, you want to make a job change, you want to start your own business, etc. Life happens which is why the job you are in today may not be the job you are in a few years down the road.

In a recent case example, Collier HMA Physician Management, LLC v. Menichello, 42 Fla. L. Weekdly D1228b (Fla. 2d DCA 2017), a doctor signed an employment agreement with a physician group that operates hospitals that provided during the course of the agreement and for a 12-month period after the agreement is terminated or expired, the doctor agrees not to work for specifically named physician groups or hospitals identified in the agreement (that were within the same geographical area). (Yes, medicine is a business too!).  

The doctor became dissatisfied with his job and went to work at a hospital included in the restrictive covenant language.   His prior employer moved to enforce the restrictive covenant language by filing a lawsuit for injunctive relief – to prohibit the doctor from working for the hospital identified in the restrictive covenant language in the employment agreement.

As often is the case, and many times justifiably so, the doctor challenged the enforceability of the restrictive covenant language. Restrictive covenants in employment agreements in Florida are governed under Florida Statute s. 542.335 to ensure that the language is reasonable in time, area, and business, and they don’t operate to unreasonably restrain competition or trade. (Check out this statute here.)  

At first blush, the restrictive covenant at-issue does not appear to be unreasonable. It was for a period of 12-months, was limited to a geographic area, and made specific reference to those hospitals or physician groups the employee could not work for during this restrictive period.

The doctor, however, argued that the agreement should not be deemed enforceable because of a change in the corporate structure of the employer, particularly due to a parent company merger.

The doctor made this argument because s. 542.335(1)(f) provides:

The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:

1. In the case of a third-party beneficiary, the restrictive covenant expressly identified the person as a third-party beneficiary of the contract and expressly stated that the restrictive covenant was intended for the benefit of such person.

2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.

The doctor claimed that the restrictive covenant could not be enforceable because the corporate change in ownership meant that the agreement was being enforced by a successor entity and the employment agreement states that no third-party beneficiaries could enforce the agreement. The appellate court shot down this argument because the entity enforcing the agreement was the doctor’s former employer (the physician group). The corporate change (merger) regarding the parent company did not impact the validity of the restrictive covenant. The parent company was not enforcing the employment agreement, nor could it.  And, the name of the employer did not change—the parent company’s merger did not result in a new successor entity being formed for the employer.

From an employee’s perspective, there are many reasons and circumstances to challenge the enforceability of restrictive covenant language in an employment agreement.  This does not mean, however, that you should ignore any risk associated with this language when signing the employment agreement.

From an employer’s perspective, there are many reasons and circumstances to enforce the restrictive covenant language in an employment agreement.  This does not mean, however, that you should ignore any restrictive language that may be unreasonable or contrary to Florida Statute s. 542.335.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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