Let’s imagine for a illustration purposes that you are a widget maker. Widget makers train for years to be certified in their field and they are highly compensated for their work. Once employed they use their widget making skills in lucrative careers where they build a client base and grow their widget making practice by working long hours and treating their customers well. Customer loyalty is high with widget makers.

Imagine our widget maker is just graduating from their post-graduate or other schooling and is newly out in the workforce looking for a job. They are offered their ideal job with Small Town Widget (a very well respected widget operation), close to home and doing the widget making they have trained for. The compensation is good and the widget making job seems to be “in the bag.” Then the hiring manager presents the widget maker with a restrictive covenant containing non-compete and non-solicitation provisions. She has never seen one of these before, so she asks her graduate school friends and others in the widget making industry about the restrictive covenant. All seem to indicate that it is pretty normal practice in the widget making industry to be required to sign one before starting your new job.

From the hiring manager or owner’s perspective there are good reasons for requiring a restrictive covenant.  They don’t want you to build a rapport with the customers or clients and then move next door and compete against them.  Also, they don’t want you building a working relationship with the other employees of the business and take them with you when you go off on your own. Our widget maker is concerned about the terms of the restrictive covenant which disallow her from widget making for a period of two (2) years after the termination of her employment in a geographic area defined as a five (5) mile radius from any Small Town Widget operation.

Our widget maker rightly questions her ability to take her widget making skills somewhere else.  Small Town Widget has offices all over the surrounding three counties. She is worried that if her employment ends with Small Town Widget she won’t be permitted to obtain another job within 100 miles from her home. She calls her attorney and seeks some advise.

Now imagine that widget maker is a doctor, dentist, CPA or other working professional. Employers like Small Town Widget have a vested interest in obtaining a restrictive covenant from their employees or independent contracts. However, if Small Town Widget is hiring her to bring her training and skills to their office their only concern should be their customers and employees and less about her going out next door and opening a competing business. After all, there are lots of widget making offices scattered throughout the area, but if she can’t solicit the customers or employees of Small Town Widget, then what concern is it of the Small Town Widget office to keep her from working within the restricted area?

Restrictive covenants, non-competes and non-solicitations, are a practice area that the attorneys at Law Offices of Oates & Oates, P.A. have much experience. Whether you are the employer or employee you should seek the advice of knowledgeable and experienced counsel before hiring new employees or signing a restrictive covenant. Please contact our offices to discuss how we might be able to assist you.

Whether you are a seasoned landlord with valuable management skills or a first-time landlord, the issue of eviction or abandonment could be an issue you have to face. The issue of abandoned property appears in two contexts. On one hand, a landlord could face the issue when the tenant has abandoned the property altogether by leaving for an indefinite period of time without giving notice. On the other, a landlord could face the issue when the lease has expired or been terminated yet the tenant fails to take all of his or her possessions with him. What are your rights and responsibilities as a landlord in each situation?

In the first situation, a landlord is dealing with an abandoned dwelling upon which the tenant probably owes rent. The landlord needs to think about whether or not the property is actually abandoned as defined by Florida law. Florida Statute § 83.59(3)(c) states that a tenant has abandoned the dwelling when he or she is absent from the property for a period of time equal to one-half the time for periodic rental payment, as long as the rent is not current and the tenant has not notified the landlord of his or her absence in writing. For example, in Shorter Home Solutions, LLC v. Tyrance Kingdom, the Broward County court held that statutory abandonment of the property was apparent because the tenant, Tyrance Kingdom, had abandoned the dwelling when he left the premises without paying his monthly rent, without advising the landlord of his absence, and without returning to the premises until after the 15^th day of the month. The landlord, Shorter Home Solutions, was entitled to remove the tenant’s personal property from the premises and was awarded a judgment of the balance on the rent and the reasonable cost of attorney’s fees.

The second situation involves a bit more action on behalf of the landlord. This situation arises when the lease has expired or been terminated, be it by eviction or abandonment, and the tenant has left behind personal property in the dwelling. Under Florida Statute § 715.104, the landlord must give written notice to the tenant or any person he or she reasonably believes to be the owner of the property. The notice must describe the property, must advise the person that reasonable costs of storage may be charged, must state where the property can be claimed, and must set out the date before which the property must be claimed.

If the tenant or owner of the property responds within the date specified and pays the reasonable costs of storage, the landlord must release the property to that person. However, if no one claims the property before the date specified, and the landlord believes that the resale value of the property will be less than $500, he or she may retain it for his or her own use, pursuant to Florida Statute § 715.109. Otherwise, the property must be sold at public sale by competitive bidding.

Although landlords are an integral part of property management businesses in today’s society and their rights and responsibilities are set out by Florida law, disputes between them and their tenants are inevitable in these situations. If you face either of these situations as a landlord or tenant, the attorneys at Oates & Oates have the experience to help counsel you and enforce your rights.

Ellen Stewart is a graduate student pursuing a juris doctor degree at Stetson University College of Law in Saint Petersburg, Florida. She is a legal research assistant for the Law Offices of Oates & Oates, P.A.

Escrow agents are a fundamental tool in the practice of business and sales, however their use could lead to disputes rather than successful transactions. Take a contract for the purchase and sale of a property for example. This transaction is simple on face, but that is true only if the parties act as they agreed. A money deposit is placed into escrow and an agreement is made that the money is to be delivered to the designated party upon the performance of another condition or event, for example the relinquishment of the seller’s property rights. If the parties act according to their agreement, then the escrow agent is merely an intermediary in the deal. However, problems arise when parties do not perform as planned.

If either of the parties does not act as they agreed to or frustrates the transaction, that party terminates the deal and most likely the contract all together. The money that was placed into escrow becomes idle because the escrow agent is usually instructed not to release or refund any of the money until the dispute between the parties is settled. The escrow agent, in order to prevent the risk of multiple lawsuits against him, can file for what is called an interpleader action.

An interpleader action is defined in the Florida Rules of Civil Procedure under Rule 1.240. The rule states “persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.” The State of Florida bases this rule on the theory that conflicting parties should litigate their claims among themselves without involving the plaintiff or middleman in their dispute.

An interpleader action should be entered into when the escrow agent or middleman has no interest in the money that is the subject matter of the dispute and there is no independent liability asserted against him. An interpleader action requires the intermediary to place the money into the court’s custody. The intermediary or escrow agent is then dismissed as a party to the interpleader action and the defending parties must litigate and argue for their rights to the money among themselves.

But the intermediary or escrow agent does not walk away and leave the parties to dispute before recovering costs and attorneys fees incurred in initiating an interpleader action. Escrow agents are entitled to recover these fees and costs under the Florida Rules of Civil Procedure. In the case Ellison v. Riddle (Sept. 3, 1964), the Florida District Court of Appeals, Second District, defined this entitlement. The court stated “in order to be entitled to such an award the plaintiff must prove his total disinterest in the stake he holds other than that of bringing it into court so that conflicting claims thereto can be judicially determined…the plaintiff must also show he did nothing to cause the conflicting claims.”

A typical escrow agent will have total disinterest in the money deposit they hold during a transaction or sale and will have no involvement in the creation of the conflict that is the subject matter of the lawsuit. Therefore, an escrow agent is entitled to recover the costs and attorneys fees incurred in filing the interpleader action. If you believe you are entitled to such awards, the service and assistance of a knowledgeable attorney is a valuable tool. Please contact the office of Oates & Oates for more information.

Ellen Stewart is a graduate student pursuing a juris doctor degree at Stetson University College of Law in Saint Petersburg, Florida. She is a legal research assistant for the Law Offices of Oates & Oates, P.A.

More and more frequently I speak to judgment creditors with a judgment issued by a state or country other than Florida. The process of registering that judgment in Florida is called domestication. Once domesticated, the foreign judgment is given full faith and credit and is enforceable by Florida courts to the same extent as a Florida judgment.

The issue that I notice more frequently is that some judgments issued by other state and foreign jurisdictions won’t meet the requirements of Florida law when it comes to the original jurisdiction of the court issuing the original judgment. Florida’s domestication or registration process recognizes the judgment debtor’s ability to contest the enforceability of the judgment at any time for lack of the original court’s jurisdiction.

Let me explain by example. Some states permit service of a defendant by certified mail. Florida doesn’t recogize this type of service as adequate individual or substitute service, except in very limited circumstances. Additionally, some states have laws (commonly referred to as long-arm statutes) that permit their residents to sue non-residents in their state, when the defendant would not otherwise be subject to the court’s jurisdiction.

As an illustration, an Arizona resident or business has a contract dispute with a Florida individual or corporation. The Florida individual or corporation does not have an office in Arizona nor has the Floridian ever done business in Arizona. If the agreement does not state where venue and jurisdiction is for any dispute between the parties, can an Arizonian sue the Floridian in an Arizona court? Perhaps Arizona law permits this; I am not a licensed Arizona attorney and do not know Arizona law. However, as soon as you bring your Arizona judgment to Florida to collect it, the judgment debtor will object that they were not subject to the jurisdiction of the Arizona courts. Florida law permits the judgment debtor in this example to raise this defense at any time. Now you, as the judgment creditor, have shown your cards in your collection attempt and you are barred from collection due to jurisdictional grounds. You are left with only one option. You must reinstitiute your suit in a Florida court in the jurisdiction where the debtor resides or has an office for the conduct of its business. This way you serve the defendant under Florida law and in the end, obtain a Florida judgment.

Read more about the domestication process in Florida

 Before you hire an attorney to help you bring your judgment to Florida, make sure they consult with you on the issue of the originating court’s jurisdiction. Make sure they have the experience in dealing with the nuiances of this area of practice. If you would like to the speak with an attorney about the collection of your judgment, please call.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements.  Before you decide, ask us to send you free written information about our qualifications and experience.

Our office represents a number of contractors whose work includes maintenance. Whether it’s a lawn service, landscape contractor, pool contractor, or general contractor, I am often asked the question: Can I lien a job for maintenance work? Florida law requires that in order to have lien rights, the contractor (lienor) must have “improved” the property.

Improved is defined as (Section 713.01(14)):

“…build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.”

If the question remains after reading that definition, the 4th District Court of Appeals has provided an example upon which to provide more criteria for analysis. In Legault vs. Suncoast Lawn Service, Inc., (April 9, 1986) the Court stated that “an improvement, in order to support a mechanic’s [contractor] lien, must result in a permanent benefit to the land or the real property [building].” From the facts in that case, the contractor had mowed the property owner’s lawn and trimmed their shrubbery, and thereafter filed a lien for “lawn service.” The Court found that, although planting for landscaping purposes may be a permanent improvement, landscape maintenance services did not.

Chapter 713, Florida Statutes, awards attorney’s fees to the prevailing party in a dispute about the validity of a lien. Therefore it is important that you select a knowledgeable lien service or attorney to help you prepare and file your liens. While a lien service can assist you in preparing the appropriate forms, only a licensed attorney can give you legal advice about what materials or services can be properly liened.

If you need help in enforcing your lien rights, please call the attorneys at Oates & Oates.

Buying or selling a business is a risky venture if your not familiar with how the process works. The best way to safely navigate through the process is to surround yourself with experienced professionals.

Step one: find an experienced business broker. Your broker is your best source of information on your market. They will help you obtain all the information you need to analyze the financial details of the transaction. Your broker is also the one that gives you an option of price based upon the market and his or her experience.

Step two: find an experienced attorney. Before you sign a contract you should review it with an experienced attorney. Only an attorney can give you the advice you require to properly cover all the contingencies of your transaction. Many of the problems associated with business transactions can be avoided with a comprehensive contract which details the terms of your deal. Before you sign the contract or during your due diligence period, your attorney will also help to ensure there are no surprises by checking for liens, making sure all the appropriate taxes are current, and licensing issues are properly accounted for.

If you’re thinking about buying or selling a business in South Florida, the attorneys at Oates & Oates have the experience to help counsel you through the process. Benefit from our experience in litigating the results of poorly planned transactions.

Commercial landlords and property managers should be familiar with Florida Statutes § 713.10, when it comes to protecting a property from the liens arising from work done to the property by a tenant. Recent case law illustrates what other protective measures can be taken by a landlord or property manager when it comes to improvements by tenants, especially if those improvements are required under the lease or if said improvements constitute the “pith of the lease.” 14^th & Heinberg, LLC, vs. Henricksen & Co., Inc., 877 So.2d 34 (Fla. 1^st DCA 2004)

The issues arise when a tenant contracts for improvements to a leased property, and the contractors, suppliers or materialmen contracted to complete the improvements do not get paid. They thereafter file notices to owner and properly perfect their liens on the leased property. The issue for the landlord then becomes, is their property subject to the liens for the improvements and can the contractor properly enforce their lien in foreclosure against the property.

“No lien language,” express provisions of a lease which prohibit liability for liens from tenant improvements, has been the usual protection for most landlords, however in many cases it is not a complete protection. Specifically, where a lease contemplates tenant improvements or even requires improvements to the property, the contractor can then argue that since the improvements were contemplated by the parties under the lease, that the landlord’s interest in the property is then subject to liens for the unpaid improvements.

Section 713.10 provides that “a lien…shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement or is thereafter acquired in the real property.” From a continued reading of 713.10, you can see the legislative interpretations of the cases that come before 14^th & Heinberg. Among them, the Section provides for the recording of a short form or memorandum of lease to put the world on notice of the express language in the lease limiting liens by contractors completing tenant improvements.

The still unresolved question even after 14^th & Heinberg becomes whether any single protective measure is enough to properly protect a landlord’s interest. Perhaps the only appropriate reading may be that landlords must use every protection available in order to keep their properties from being subject to liens for tenant improvements. Of course each situation is factually distinct and there are many factors to consider to properly protecting an owner’s interest in a property from liens arising out of tenant improvements on the property. Therefore, the advice of a knowledgeable attorney in the preparation of a commercial lease agreement is always good practice.

The 4th District Court of Appeals, covering Broward, Palm Beach, St. Lucie, Martin, Indian River, and Okeechobee Counties, has ruled on a long standing disputed point of law in Broward County. The question:

Whether a tenant claiming a defective or non-existent three-day notice is a residential eviction is required to tender undisputed rent into the court registry as set forth in Florida Statute § 83.60(2) in order to defend the action based on the defective or non-existent three-day notice.

The ruling: “We answer the question in the affirmative and affirm the decision of the County Court.” Myron Alphesus Stanley, Jr. vs. Quest International Investment, Inc., 2010 WL 4861722 (Fla. 4th DCA 2010).

The issue came about when a Landlord filed an eviction and three day notice using a form eviction complaint containing errors and omitting certain required information. The tenant thereafter filed a timely motion to dismiss, or in the alternative, motion to determine rent, but did not deposit the undisputed rent into the court registry as required by § 83.60(2), Florida Statutes. Broward County Court Judge Lee entered a default against the tenant for having failed to post the undisputed rent into the court registry and this appeal was filed.

The 4th District made their ruling on the basis that the plain language of § 83.60(2) required the posting of unpaid rent to the court registry as a prerequisite to any defense other than payment. The Court declined to follow the Appellant’s argument that a proper three-day notice is a condition precedent to filing an action for possession of property. The Court was mindful of the public policy issues raised by the tenant, however left policy making to the legislature and felt its only obligation was to follow the plain meaning of the law.

This is a win for landlords, who until now have been subject to different interpretations of the current law, depending on which judge was randomly assigned to the eviction. It is important to note that there are still other issues which remain for landlords who prepare and file their own evictions. The services of a competent and knowledgeable attorney are still the best way to avoid problems with an eviction. This ruling does not change the long standing law that a tenant is entitled to recover its attorney’s fees and costs from the landlord for an improperly file eviction.

A bit of planning now can save countless heartaches later. It doesn’t surprise me to learn that nobody seems to want to plan for the inevitable. However, making a complete estate plan is necessary to avoid unintended results and unnecessary expenses after your passing. While it is true that the Legislature has “intestacy laws” in place that control an individual’s estate should they pass without a will or other estate plan, it is usually a vast departure from what our clients expected. The good news is that making a simple (and comprehensive) estate plan is easily accomplished. Follow these four simple steps to prepare your simple state plan:

1. Last Will and Testament – Everyone needs their own Last Will. This is the document that sets out who will be in charge of administering your estate and how your estate will be divided.  The proper execution of your will is paramount. A will made in another state may not necessarily meet the requirements of the State of Florida. Because there can only be one original of this document it is important to keep your Last Will updated.

2. Durable Power of Attorney – Because a Last Will only controls your estate after you pass, everyone should have a Durable Power of Attorney (DPOA). The DPOA is a comprehensive document permitting the person named therein (the “Attorney-in-Fact”) to act for you in the event you are incapacitated or otherwise unable to make decisions on your own. The “durable” nature of the document means that the document continues to be an effective grant of power to the Attorney-in-Fact while you are incapacitated. As with the Last Will, this document is required to be signed in a specific manner to be valid.

3. Living Will – If you remember the Terri Schiavo case (wiki article here) there is no need to explain why you need a Living Will. It is the document that expresses your desire to be removed from life support in the event you are incapacitated and it has been determined by your physician that (i) you are in a permanent vegetative state; (ii) have been diagnosed with an end stage condition or (iii) have a terminal illness. This is not a order to pull the plug if the conditions are met, but instead it names an individual person with whom you place the authority of making the decision along with the recommendation of your physician. A Living Will is not the same as a “do not resuscitate.”

4. Health care surrogate – This document has become even more important in recent years. Where a Durable Power of Attorney mainly concerns financial and business matters, the Health Care Surrogate (HCS) is a directive wherein you appoint one or more persons to make medical decisions for you in the event you are unable. Just like the Living Will, the HCS is not an order which preempts the medical advice of your physicians, but instead a document that gives your physicians the ability to consult the individuals named about important health related matters should you be unable to.  

Contact our office to see about scheduling an appointment to begin your simple estate plan.

Thomas Oates receives plaque in appreciation of his service as President of the North Broward Bar Association

December 3, 2010 – Galuppi’s Restaurant, North Broward Bar Association (NBBA) Annual Holiday Party 

At the annual Holiday Party for the North Broward Bar Association, Past President, Thomas Oates, was awarded a plaque in appreciation of his service as President for the 2009-2010 term.  Mr. Oates was elected to the position of President of the North Broward Bar Association in June 2009, succeeding then President, Stuart House.  During his term as President, the NBBA hosted several prominent speakers including Florida Senator Jeremy Ring, Florida Bar President Jesse Diner, Chief Judge Victor Tobin, Judge Ilona Holmes, and Florida Bar President-Elect Scott G. Hawkins. The plaque is a token of the NBBA’s appreciation for the year-long dedication and service of the outgoing President to the local bar organization.