When the Sale of a Cemetery Unearths a Claim for Breach of Fiduciary Duty

DFG Group, LLC. v. Heritage Manor of Memorial Park, Inc., 2018 WL 527013 (Fla. 4th DCA Jan. 24, 2018)

In DFG Group, the Fourth District reversed a final judgment awarding attorney’s fees as damages in a lawsuit involving the sale of a cemetery.

The owners of Heritage Manor Memorial Park retained a law firm to assist them with the sale of the cemetery. What the sellers didn’t know was the same firm also represented the buyers. After the sale, the sellers discovered that the law firm received a $100,000 kickback. The sellers filed a lawsuit against the buyers and the attorney defendants for intentional misrepresentation, willful non-disclosure, breach of contract, civil theft, conspiracy to breach fiduciary duty, and aiding and abetting breach of fiduciary duty. The attorney defendants settled. As to the buyers, the jury found that the sellers were entitled to damages compromised of the attorneys’ fees, costs for the transaction and punitive damages. The buyers moved for judgment notwithstanding the verdict, arguing that the attorney’s fees were not a proper element of damages.

The Fourth District agreed with the buyers and found that the trial court did not apply the correct measure of damages, causing fundamental error. Fundamental error can occur when a party recovers damages they are not entitled to. When recovering damages in a tort claim, the goal is to place the party back to the position they were in before the injury occurred. In this case, the jury found that there was no difference between the sale price and the fair market value price at the time of sale. Therefore, the seller did not suffer a loss. Moreover, since the seller did not suffer a loss, attorney’s fees could not be part of the damages. Additionally, the seller was not entitled to punitive damages because to obtain punitive damages there had to be a compensatory damages award.

Real estate transactions occur every day. A buyer and seller want to avoid a breach of the contract or a misrepresentation arising during the transaction. Having the right counsel to guide you through the legal process, while making sure your rights are protected is important. If you or someone you know has a breach of contract claim or requires legal representation as a buyer or seller in a commercial or residential real estate transaction, 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.


Court of appeals dismissal of defamation lawsuit by former coach for Miami Dolphins

Turner v. Wells, 2018 WL 456955 (11th Cir. 2018)

In Turner, the United States Court of Appeals for the Eleventh Circuit, upheld the District Court’s decision to dismiss a defamation case, involving a former coach for the Miami Dolphins.

In 2013, Jon Martin, a player for the Miami Dolphins, left the team mid-season and checked himself into a hospital for psychological treatment. Martin later explained that he left the team due to persistent taunting. The National Football League (NFL) hired the New York law firm of Paul, Weiss and partner Theodore Wells, Esq., to investigate the taunting allegations. Mr. Wells’ investigation concluded that both the players and Coach Turner had been bullying Martin and the persistent harassment did cause him to leave the team. Furthermore, the report stated that the players and coaches enabled the bullying. Five days after the report was released the Dolphin’s fired Coach Turner. Mr. Turner filed a defamation case against the defendant. The defendant law firm, argued that the report consisted of opinions which are not actionable and the complaint misstated the report.

To prove defamation under Florida law, a party must establish that (a) defendant knowingly or recklessly made a false statement of fact, was defamatory and (b) the statement was published causing actual damages. If a statement is considered pure opinion, it is not actionable, whereas certain statements of fact are. A statement of fact is one that can be proven true or false. A true statement is one which can’t be proven false and is protected against defamation.

Furthermore, Coach Turner was a public figure who failed to plead actual malice. To prove actual malice, the plaintiff must prove that the defendant made the statement with knowledge that the statement was false, or with reckless disregard of whether it was false or not. The Eleventh Circuit agreed that the alleged defamatory statements in the report were not actionable. The Court also determined that Coach Turner failed to adequately plead actual malice.

Defamation cases adversely impact someone’s reputation. 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 defamation claim or has been sued for defamation, 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.


Supreme Court Upholds Health Care Mandate as Tax

The individual health care mandate was upheld as a tax, while the Medicaid expansion is said to violate the Constitution, according to the Supreme Court’s widely anticipated ruling this morning. Excerpts of the Court opinion appear below.

In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health care. One key provision is the individual mandate, which requires most Americans to maintain“minimum essential” health insurance coverage.

For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. The Act provides that this “penalty” will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties.

Another key provision of the Act is the Medicaid expansion. The current Medicaid program offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care. The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover.

The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”

The opinion of the Court with respect to Part III–C concludes that the individual mandate may be upheld as within Congress’s power under the Taxing Clause.

The Court rules that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion.

Read the full Supreme Court Ruling on the Patient Protection and Affordable Care Act.

Fort Lauderdale Litigation Attorneys

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We understand that your need for sound legal counsel extends beyond the 9:00 to 5:00 work day, and make ourselves available on your schedule. Contact attorney Howard Kahn, Esq. to discuss a case.