Gelber v. Brydger, 2018 WL 2715250

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The Fourth District Court of Appeal recently held that trial courts are able to consider a former spouse’s ability to access retirement accounts without penalty in determining whether there has been a substantial change in circumstances to warrant a downward modification of alimony.

In Gelber v. Brydger, the parties were divorced in 2004. The parties’ marital settlement agreement (“Agreement”) provided that the former husband was to pay $6,375.00 per month to the former wife in permanent periodic alimony, and the former wife would receive various retirement and annuity accounts as part of equitable distribution. The Agreement was modifiable and made no mention of the income which the former wife would receive from the retirement accounts once she reached the age of retirement.

Ten years after the parties’ divorce, the former husband moved for a downward modification of alimony. The former husband argued that although he still had the ability to pay his alimony obligation of $6,375.00 per month, there had been an unanticipated, substantial change in circumstances in that the former wife had reached the age of 59 ½ and could begin taking distributions from the retirement accounts without penalty. The trial court agreed with the former husband that the change in the former wife’s available income from 2004 to 2014 was unanticipated, since the monies generated from her retirement assets could not be attributed to her in 2004. The trial court found that the former wife’s need for alimony had decreased and lowered the former husband’s monthly alimony obligation. The former wife appealed the trial court’s decision on the grounds that her ability to access the retirement accounts without penalty was not an unanticipated change in circumstances.

The Fourth District Court of Appeal affirmed the trial court’s decision, holding that the former wife’s ability to access the retirement accounts without penalty was an unanticipated change in circumstances, since it had not been contemplated at the time of the Agreement, since the Agreement was modifiable, and since equity so required in accordance with F.S.§ 61.14(1)(a).

Physician’s Noncompete Agreements

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Employers regularly use noncompete agreements to protect their legitimate business interests. When hiring employees, employers want to restrict employees from approaching customers or working for competing companies within a certain location, for a certain duration of time. Employees routinely argue that they have a right to work and employers are unjustly infringing on their right to work. This is true for physicians.

Physicians are commonly bound by noncompete agreements. In fact, noncompete agreements are more prevalent in this profession because of increased mobility and frequent employment changes. It is often easier for a physician to join an already established practice than to start up one’s own practice. Physician employers often require noncompete agreements or restrictive agreements in employment arrangements. These agreements restrain physicians from building competitive medical practices within a certain geographical region for a certain period of time. Additionally, it is common to see noncompete provisions in partnership agreements and in purchase and sale agreements of medical practices.

Noncompete agreements or restrictive covenants have negative impacts on physicians. Such limitations can require a physician to relocate to practice outside the noncompete agreement’s geographical radius. These limitations and doctor-patient relationships, have led to discussions about physicians having the same freedoms as lawyers from restrictive covenants. Because of the confidential lawyer-client relationship, the Florida Bar disfavors these types of agreements to protect the lawyer-client relationship.

Under Florida Statute §542.335, courts are more forgiving of physicians when deciding to enforce noncompete agreements. Because these agreements tend to disrupt the doctor-patient relationship; Florida courts tend to partially enforce the physician noncompete agreements to help protect the doctor-patient relationship and allow for the patient to receive continuous medical care.

Access to medical care is a significant public interest. Florida’s Third and Fourth District Courts have modified limitations placed on physicians favoring public interest over the employer’s legitimate business interest. In Open Magnetic Imaging Inc. v. Nieves-Garcia, 826 So.2d 415 (Fla. 3d DCA 2002), the Third District held that a noncompete for the entire tri-county area was too great a burden for a physician only working in Miami Dade. While employed, Nieves-Garcia created a database that included names of physicians, types of practices, information regarding their referral patterns, preferences and which insurance they accepted. The Third District determined that this database was a legitimate business interest, and remanded the trial court to modify and narrow the restrictive covenant.

Limitations have also been narrowed against a physician in favor of continuing care of patients. Litwinczuk v. Palm Beach Cardiovascular Clinic, L.C., 939 So.2d 268 (Fla. 4th DCA2006). In Litwinczuk, a doctor stopped working at a medical clinic and opened his own practice four blocks down the street, violating his, noncompete which restricted the doctor from practicing in Palm Beach County. The trial court determined that including all of Palm Beach was unreasonable and reduced the area to the southernmost boundaries of the City of West Palm Beach north to the Martin County line. The Fourth District upheld the trial court’s ruling to limit the geographical area in the noncompete to the “region in which the clinic had a legitimate business interest to protect.” In addition, Florida courts have determined it is not a violation of a noncompete agreement for a physician to advertise or announce their new location, because patients should be allowed to follow their doctors to their new practices. Lotenfoe v. Pahk, 747 So.2d 422, 424 (Fla. 2d DCA 1999); King v. Jessup,698 So.2d 339, 341 (Fla. 5th DCA 1997).

If you are a physician subject to a noncompete agreement or restrictive covenant, or a member of a medical practice seeking to enforce such a provision, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will fully represent your legal needs. Call us now at 954-321-0176 to set up a consultation.

Personal Jurisdiction Does Not Extend to a Non-resident Bank

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Banco De Los Trabajadores V. Ricardo Rene Cortez Moreno, 2018 WL 522186 (Fla. 3d DCA Jan. 24, 2018)

In this case, Banco De Los Trabajadores (Bantrab) was a Guatemalan company that began doing business with Cortez, a Guatemalan citizen residing in Miami, Florida. Cortez’s scope of employment was to assist in promoting and increasing Bantrab’s business in the United States. While Bantrab established small banking facilities all over Florida, the formal banking activities occurred in Guatemala.

During Cortez’s employment, it was discovered that Bantrab was allegedly laundering large amounts of money for narcotics trafficking. It was also alleged that Directors of Bantrab had been traveling to Florida to meet with various members of drug cartels. When asked by Bantrab to stop investigating matters into the alleged large-scale criminal conspiracy, Cortez refused and his contract was terminated. To salvage the business relationship, Cortez flew to Guatemala to meet with the Directors of Bantrab. While heading to the airport to return to Florida, Cortez was shot and struck by two bullets. Cortez claimed that Bantrab Directors ordered the assassination attempt. This attempted murder led Cortez to file a suit for assault and battery, Florida RICO, breach of contract, and tortious interference with contract against Bantrab. Bantrab filed a motion to dismiss two counts (assault and battery and Florida RICO) for lack of personal jurisdiction. The trial court denied the motion and Bantrab appealed.

To sustain personal jurisdiction under Florida’s long arm statute §48.193, the court must determine if the facts can bring the action within the realm of the statute and if the party has sufficient “minimum contacts.” There are two different types of personal jurisdiction under the long-arm statute; general and specific. When a nonresident defendant has engaged in substantial and non-isolated activities within the state, a Florida court has “general” jurisdiction over the defendant. Specific jurisdiction in Florida, stems from a specific act enumerated in the Florida statue and the claim must arise from such actions.

The Third District ruled that the trial court applied the incorrect standard to determine if it could exercise general jurisdiction over Bantrab. The standard applied by the trial court was “continuous and systematic general business contact.” This standard was significantly changed by a U.S. Supreme Court case Goodyear v. Brown. Therefore, the general jurisdiction ruling was reversed and remanded back to the trial court to apply the appropriate standard under Goodyear. Goodyear, provides for general jurisdiction when the corporation’s “affiliations with the State are so ‘continuous and systematic,’ it would be considered home in the forum state. The Third District also found that the allegations for assault and battery were insufficient to support specific jurisdiction. The act would have had to occur within the state. Lastly, due to the RICO portion of the claim being dismissed with prejudice for failure to state a cause of action, the Third District determined that it was premature for the trial court to address specific jurisdiction until Cortez properly stated a cause of action.

Due process is a constitutional right. When lawsuits arise, personal jurisdiction can determine where a party can be sued. It is important to protect those rights and insure that you have the right counsel to guide you through the legal process. If you or someone you know has a case involving interference with a contract, breach of contract or issues involving personal jurisdiction, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will fully represent your legal needs. Call us now at 954-321-0176 to set up a consultation.

Fourth District Denies Attorney’s Fees to Homeowners in Foreclosure Case

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Sabido v. The Bank of N.Y. Mellon, 43 Fla. L. Weekly D305 (Fla. 3d DCA 2018)

In Sabido, the Fourth District granted a motion for clarification and denied a motion for reconsideration, to recover attorney’s fees in a foreclosure case.

After the trial court entered a final judgment in favor of the lender, the homeowners appealed, claiming that the lender failed to establish its rights to enforce the note under the lost note statute. Under the lost note statute, the lender must either prove they are the holder of the note or have the right to enforce the note.

The Fourth District agreed with the homeowners and reversed the final judgment. Additionally, the trial court was directed to dismiss the foreclosure case. A separate order was issued by the Fourth District denying the homeowners attorney’s fees under the terms of the mortgage. The homeowners then sought clarification and reconsideration of the separate order entered by the Fourth District on the attorney’s fees.

The homeowners argued in their motion that they should recover attorney’s fees since there is an attorney’s fee provision in their mortgage contract. The Fourth District has held that a prerequisite to recovering fees is an enforceable note and mortgage. The trial court previously established that the mortgage and note were signed by the original lenders, Washington Mutual and transferred to The Bank of N.Y. Mellon. The Bank of N.Y. Mellon was required to sign the mortgage and note to be entitled to enforce them. Because Bank of N.Y. Mellon did not sign the mortgage or note, the Bank lost the right to enforce the instruments. Since it was already established that the lender lacked the ability to enforce the mortgage, the fee provision was also unenforceable. Therefore, the Fourth District denied the motion for reconsideration to recover attorney’s fees.

While lenders and homeowners have competing interests in foreclosure cases, both parties require competent legal counsel to avoid or minimize the consequences raised in this case or similar matters. Having the right counsel to guide you through the legal process, while making sure your rights are protected is essential. If you need to commence or defend a foreclosure action, the lawyers at Kahn & Resnik, P.L. have the experience and skill to represent your interests. We proudly serve all of Florida and will fully represent your legal needs. Call us now at 954-321-0176 to set up a consultation.

Third District Reverses Final Judgment of Foreclosure Entered in Favor of Homeowners

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HSBC v. Buset, 43 Fla. L. Weekly D305 (Fla. 3d DCA 2018)

In Buset, the Third District reversed a foreclosure judgment entered in favor of the homeowner, and directed that judgment be entered for the bank.

In 2005, the Buset family obtained a loan from Fremont Investment & Loan. The lender packaged the note with other notes for securitization. Securitization is the process of pooling mortgages and other contractual debt for resale to third-party investors. The notes contained an undated and unsigned endorsement. Eventually, the homeowners defaulted on the loan.

At trial, the homeowners called one witness, a New York attorney named Kathleen Cully, Esq. who gave both legal and personal opinions about the note claiming that the note was not negotiable; the lender lacked standing; and the pooling agreement was violated due to an improper endorsement. The trial court relied heavily on the expert testimony and found for the homeowners. The lender appealed.

The Third District ruled that the trial court erred when Cully’s testimony regarding legal issues was admitted as expert testimony because experts should not be allowed to testify on purely questions of law. The Third District held that expert testimony is inadmissible when it concerns a question of law because the determination of legal issues should be resolved by a trial judge through assistance of counsel.

Additionally, the trial court erred in ruling that the note was not negotiable because it did not follow controlling precedent regarding negotiable instruments. For a note to become non-negotiable, the note must expressly incorporate the terms of the mortgage not just reference it. This note only referenced the mortgage, and did not apply the terms of the mortgage. Therefore, the note remained a negotiable instrument.

The trial court also erred in ruling that the lender did not having standing. The trial court determined the lender lacked standing because there was an incomplete chain of endorsements. Foreclosure cases are based on the person’s entitlement to enforce the instrument, not the ownership of the instrument. Since the note had a blank endorsement, it became bearer paper which made it negotiable by a simple transfer to the Bank. Therefore, the lender had standing to bring the foreclosure claim.

Lenders and homeowners have competing interests in foreclosure proceedings. Having the right counsel to guide you through the legal process, while making sure your rights are protected is essential. If you or someone you know need to initiate a foreclosure proceeding or be defended in such a proceeding, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will fully represent your legal needs. Call us now at 954-321-0176 to set up a consultation.

Third District Reverses Slander of Title Dismissal Between Aventura Homeowners and Developers

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Two Island Development Corp. v. Clarke, 2018 WL 522200 (Fla. 3d DCA Jan. 24, 2018)

This dispute arose between luxury residential homeowners in Aventura, Florida and the developers of a sixteen-story two-tower condominium building. After the homeowners filed three different lawsuits, the developers filed a lawsuit which the trial court dismissed. Ultimately, the developers appealed and the Third District reversed the trial court’s dismissal of the slander of title claim. The Third District also reversed the dismissal of the Williams Island residents.

The dispute involves three islands connected by one road; Williams Island, South Island, and North Island. In 2013, the homeowners of the South Island approved a Shared Maintenance Association Plan and the Easement, Operating, and Development Agreement (EODA) with the North Island. Furthermore, when the Williams Island residents purchased their properties, there was an expressed agreement titled, “Agreement Not to Object.” This agreement stated that there would be no objection to development on the North Island. Relying on the EODA and the Williams Island agreements, the developers began construction of the two towers on the North Island.

In response to the development, residents of Williams Island and the South Island began protesting, filed for temporary injunctions, lobbying city officials and allegedly obstructing a settlement. In addition, the South Island residents refused to assist the developers in obtaining a permit for an additional sidewalk. The developers argued that this constituted a breach of contract. These actions allegedly led to delays in the developers obtaining permits, buyers backing out of purchases, loss of potential customers and damages to the developers’ reputation.

In due course, the developers sued for breach of covenant; specific performance; and breach of the duty of good faith and fair dealing; against the South Island residents. In addition, the developers sued both the South Island residents and Williams Island residents for tortious interference. The developers also sued certain individual residential homeowners who lived on the South Island for slander of title. After the trial court’s oral ruling, but before the final order was entered, the developers voluntarily dismissed the Williams Island residents as defendants. The trial court’s order dismissed with prejudice both the Williams Island residents and the South Island residents. The trial court also held that the South Island residents were not bound by the EODA because they did not sign the agreement. The developers appealed the dismissal of the slander of title and argued that the dismissal of the Williams Island residents was improper because there was already a voluntary dismissal of a record.

The Third District found that the trial court erred in dismissing the Williams Island Defendants. Under Florida Rule of Civil Procedure 1.250(b), a party may be dropped by an adverse party in the same manner provided for a voluntary dismissal. Therefore, the plaintiffs had a right to drop some or all of the defendants in the case. Since the dismissal of the Williams Island residents was before the trial court entered the final ruling, the court could not dismiss the Williams Island residents as an adjudication of the case.

The Third District also found that the trial court erred in the dismissal of the slander action. To state a claim for slander of title, a party must make a false and malicious statement, oral or written, must be made to disparagement a person’s title to real or personal property causing special damages. It was alleged that the individual defendants in the case made false and malicious statements to potential buyers about the planned development, as well as, published the false statements, causing loss of sales and reduced marketability. The Third District found that the developers had stated a cause of action for slander of title and reversed the trial court’s order dismissing the claim.

Slander of title and breached contract claims involve complex legal issues. Having the right counsel to guide you through the legal process, while making sure your rights are protected is essential. If you or someone you know has a slander of title claim, breach of contract or breach of covenant claim, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process. Call us now at 954-321-0176 to set up a consultation.

When Your Child Becomes a Legal Adult

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Parents have control of the legal decisions regarding their children for the first 18 years of their lives. When a child turns 18, a parent loses the “legal” right to make decisions regarding issues such as health-care, finances, and academics. Many parents do not plan for these changes, but when children head off to college it often becomes extremely important.

Drafting a power of attorney to address health-care issues and a living will can help resolve the matter. A health-care power of attorney provides parents the ability to make health-care decisions for their child when the child become physically or mentally unable to make those decisions. Having a living will in place allows for the parents to make life-threatening medical decisions, when a “child” is unable to do so. In addition to these forms, a HIPPA Authorization can be helpful to access a child’s personal medical information in case a child becomes ill. HIPPA Authorization forms allow for full or partial release of medical information to a parent. Absent such forms, a parent has no legal right to discuss a child’s health with a medical provider once the child reaches 18 years of age.

Being able to make medical decisions for a child is important, but financial decisions can be just as important. A financial power of attorney allows for parents to manage their child’s finances in an instance where the child is temporarily or permanently unable to make decisions. Additionally, a financial power of attorney will take the place of expensive guardianship proceedings for the child.

  Ultimately, an adult child can be faced with the same issues as a parent. There can come a time in life when the roles are reversed and a parent can become the responsibility of their 18-year-old child or spouse. The same forms a parent needs to make legal decisions for their children can be used to enable an adult child to make such decisions for their parents. The power of attorney and living will, allow for those decisions to be made in the event the parent or spouse becomes physically or mentally unable to. Furthermore, having a HIPPA Authorization will allow access to the medical records in the event they become ill.

Financial responsibilities can also become the responsibility of the adult child when a parent is unable to make financial decisions. Having a financial power of attorney will allow the adult child to manage the parent’s finances if the parent is temporarily or permanently unable to. Ultimately, these forms can help avoid court proceedings and unnecessary stress when trying to make timely decisions.

If you or someone you know require any of these types of documents please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process. Call us now at 954-321-0176 to set up a consultation.

Jacobus v Trump, 64 N.Y.S.3d 889, (1st Dep’t 2017)

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On appeal, the trial court’s decision dismissing a defamation case against President Donald Trump was upheld. Cheryl Jacobus, a political strategist, filed a defamation action against Mr. Trump after he called her, during his political campaign, “A real dummy” on Twitter and claimed she “begged for job.”

In 2015, Trump’s campaign reached out to Ms. Jacobus soliciting her interest about becoming the communication’s director for the campaign. After meetings with Mr. Trump’s campaign manager, Ms. Jacobus decided that she could not work for the campaign. Throughout Mr. Trump’s campaign, Ms. Jacobus made comments criticizing Mr. Trump on Twitter and national television. Mr. Trump’s campaign manager, while on a telephone call with MSNBC, claimed that Ms. Jacobus was making these accusations simply because she was upset about not being hired.

To prove defamation, a party must establish that a defendant (a) intentionally made a false statement of fact, (b) published the statements to a third party, and (c) that the statement was not privileged and intended to cause harm. The context in which the words are used and whether those statements are fact or opinion is important. Expressions of opinion no matter how offensive are not actionable, whereas, statements of fact are actionable. A statement of fact is one that can be proven true or false. A reader is more likely to determine statements of fact or opinion based on the forum, where the statements are published. An article published in a newspaper like the Sun-Sentinel or New York Times, would lead one to believe that the information provided in the article was checked for accuracy and is therefore factual. Statements in magazines like the Enquirer are known more for gossip. Forums on the internet have become places where people can freely express their ideas and opinions. People tweet, write blogs, post on Facebook and write reviews all the time. Most of those ideas expressed are merely opinions. Many courts have ruled that comments made in an online forum are statements of opinion not fact.

The trial court determined that Mr. Trump’s tweets were merely an exaggerated reference to Ms. Jacobus’ state of mind. Additionally, the comments being made on a social media platform like Twitter, following Ms. Jacobus making negative comments about Mr. Trump, would almost certainly lead readers to believe that it was a petty quarrel between the two. The appellate court affirmed the determination that the comments were opinion and not actionable.

Defamation cases can be stressful, especially since someone’s reputation is on the line. Having the right counsel to guide you through the legal process helps alleviate that stress while, at the same time making sure your rights are protected. If you or someone you know has a defamation claim, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process. Call us now at 954-321-0176 to set up a consultation.

Mehrdad Golchin v. Masoumeh Farzaneh, 2017 WL 5906886, (Fla. 5th DCA Dec. 1, 2017)

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In Golchin, the Fifth District reversed the trial court’s order requiring a father to pay retroactive child support.

The proceedings commenced in early 2016, when the father transferred his share of the marital home to the mother to offset child support and other obligations for their child. At the time, both parents agreed to waive any claims for child support, and accordingly, the trial court determined that neither parent would be awarded child support, without prejudice to seek a future award of child support. Later that year, the mother filed for child support and the court found in her favor. The father was ordered to pay monthly child support to the mother, as well as, retroactive support before the filing date of the motion. The father appealed the order granting retroactive support.

The Fifth District found that the trial court had erred in its order directing the father to pay child support for the time period prior to the date of the motion. The Fifth District opinioned that a trial court may modify retroactive child support, but only from the date the motion is filed forward and directed the trial court to amend its order consistent with its ruling.

Divorce and child custody cases can be extremely stressful and complicated. Having the right counsel to guide you through the legal process helps alleviate that stress while, at the same time making sure your rights are protected. If you or someone you know is going through a divorce or child custody dispute, please contact the lawyers at Kahn & Resnik, P.L. Our lawyers proudly serve all of Florida and will guide you through every step of the legal process. Call us now at 954-321-0176 to set up a consultation.

Instagram Change in Legal Rights Results in Class Action Lawsuit

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Fort Lauderdale area residents who are busy posting their holiday photos to Instagram should be aware of pending changes in subscribers’ legal rights as defined in the Terms of Use.

Instagram, the photo-sharing service owned by Facebook, is the subject of a class action lawsuit filed in California federal court late last week. The lead plaintiff alleges breach of contract, among other claims, for proposed changes to photo usage terms and a planned move to mandatory arbitration.

South Florida Instagram users may want to review their account to determine if these pending changes in legal terms will alter their plans to use the Instagram service.

Proposed Usage Right Changes for Photos Posted on Instagram

Following is an excerpt from the proposed Instagram Terms of Use scheduled to take effect on January 19, 2013:

Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy …

Instagram Arbitration Provision Draws Controversy

Consumers also responded negatively to a proposed new language (below) in users’ legal rights. As of January 19, 2013, Instagram wants to subject all user disputes to arbitration rather than litigation.

Except if you opt-out or for disputes relating to: (1) your or Instagram’s intellectual property … ; (2) violations of the API Terms; or (3) violations of … Basic Terms … you agree that all disputes between you and Instagram … will be resolved by binding, individual arbitration under the American Arbitration Association’s rules for arbitration of consumer-related disputes and you and Instagram hereby expressly waive trial by jury.

The lawsuit, filed in U.S. District Court for the Northern District of California, is Lucy Funes et. al. vs. Instagram Inc., 12-cv-6482.

Click on the link for Instagram proposed Terms of Use, scheduled to take effect January 19, 2013.

Click on the link to read the current Instagram Terms of Use.

Fort Lauderdale Securities Litigation and Arbitration Attorney

Contact Fort Lauderdale securities litigation and arbitration attorney Howard N. Kahn, Esq. if you or someone you know has a securities or broker dispute. He is an experienced securities litigation and arbitration attorney, and is available to assist individual investors, brokers, and brokerage firms involved in securities matters. You can reach him at 954-321-0176 or online.