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Articles Posted in Florida Business Litigation

Brick Business Law is honored to be recognized by the Law Firm 500 publication as the 18th fastest growing law firm in the United States in 2020.  The Firm has had a relentless focus on advocating for businesses in Florida, whether through litigation, informal negotiations or general counsel services.  The Firm’s growth has come primarily through repeat clients and referrals from other attorneys.

2020-LF500_Honoree_SEAL_sm_405x616-197x300In 2018, the Firm added its second office in St. Petersburg to complement the existing Tampa-area practice.  Senior Attorneys John Koda and Joe Kennett, both business litigators, are now based out of the Firm’s St. Petersburg location and focus on business litigation on Florida’s West coast.  In 2020, the Firm added two new attorneys to the Tampa office, Jocelyn Smith and Tyler Gordon.  Ms. Smith is a senior associate in the business litigation group and Mr. Gordon works on general counsel and business transactions.

In 2020, founder Kevin Brick achieved Board Certification in Business Litigation, one of less than 250 board-certified experts in Florida business litigation.  He is one of only six attorneys to reach this milestone in 2020.  In March and April, Mr. Brick became a frequent guest on the “Ask the Experts” radio show syndicated throughout Florida to answer questions on business legal issues related to Covid-19, government lock downs and civil unrest as business owners sought guidance on the changing legal landscape.

Kev-Pic-195x300Brick Business Law founding attorney Kevin Brick was recently awarded the distinction of Board Certification in Business Litigation.  This is the highest level of competency and experience awarded by the Florida Bar.  Currently there are about 108,000 members of the Florida Bar, but less than 250 have earned Board Certification in Business Litigation.

Each year, the Florida Bar’s Board of Legal Specialization and Education (BLSE) evaluates applicants for professionalism and tests them for expertise in particular areas ofbusinesslitigation-227x300 practice.  Applicants must undergo peer and judicial review and must demonstrate significant recent relevant experience and specialized continuing legal education before being approved to take a rigorous 2-day exam.  The certification distinguishes attorney Brick as an expert and specialist in the area of Business Litigation.   Overall, only about 7% of Florida Bar members are Board Certified in any practice area.

The recognition follows other recent honors for Attorney Brick.  He was recognized in 2019 as one of the top 100 “Bet-The-Company Litigators” by America’s Top 100.  He also maintained an AV-rating from Martindale Hubbell and was recognized again as a SuperLawyer by SuperLawyers Magazine.  In 2020, Mr. Brick was interviewed multiple times on the “Ask The Experts” radio show in Tampa to provide relevant information to local businesses in response to the COVID-19 pandemic and government lock-downs.

Doctors rushing patient to surgeryToday I was contacted by an investigative reporter wanting to interview me about business that are charging Covid-19 surcharges and increasing fees for providing services.  The reporter wanted to know (1) if this is something to be expected, (2) is this legal and (3) what can affected (a) consumers or (b) businesses do about it.

Here are my responses:

1. Should We Expect Businesses to Raise Their Rates During COVID-19?

Court-Image-300x200In the case of Colon v. Accountable Climate Solutions, Inc.Brick Business Law prevailed in its Motion for Final Summary Judgment in full defense of the Plaintiff’s case and was awarded its attorney’s fees and costs.  The case was brought by a former employee of Brick’s client who claimed he was forced to work overtime and was due unpaid wages and overtime wages.  Brick was able to obtain admissions and secure other documentary and testimonial evidence which left no genuine issue of material fact to be litigated as to the employee’s claims and the Motion for Final Summary Judgment was brought on behalf of the employer in May of 2019.

Pursuant to Florida Statute 448.08, the prevailing party in any action for unpaid wages may be awarded their reasonable attorney’s fees from the non-prevailing party.  Although it is not required, the Court found that Brick had properly noticed, plead and supported entitlement to all fees and costs and, in addition to rejecting all of the employee’s claims, entered a final judgment against the employee for all of the fees and costs incurred by the defendant in defense of the suit.

Critical to the defense of the case was the employer’s record-keeping system, its document-management system and implemented practices, which required the employer and employee to sign-off on and document hours, jobs and earnings.  Certain employers are subject to record-keeping requirements with regard to employee records.  Additionally, EEOC, FDA and FLSA each have their own requirements for how long employment records must be retained.  However, even where records are not required, clearly set-out processes of signing in and out, approving hours, requiring employees to sign-off, setting up policies and procedures which are consistently enforced, having a clearly-defined compensation plan and maintaining employment records are all best practices which can make the difference in the defense of an informal claim or a lawsuit by a former employee brought for a number of different reasons.

In the case of Mandarelli, et al v. Power Line Industries, Inc., filed in the Circuit Court of Hillsborough County, Brick Business Law filed and gavel-1238036-300x201won a motion for contempt and sanctions resulting in a rare final judgment sanction in the case.

The Plaintiffs sued Brick’s client under a number of theories of liability such as breach of contract and fraud alleging that Power Line Industries sold a defective product to the Plaintiff and defrauded him.  Brick counter-sued on behalf of its client for defamation due to videos that the Plaintiff posted on YouTube claiming that the product was defective and the Defendant was deceiving the public.

The Firm aggressively executed its litigation strategy, including motion practice and discovery, over the course of a year of litigation.  The Plaintiffs were continually dilatory and obtuse in their responses.  Due to the Plaintiff’s tactics, Brick filed a Fla. R. Civ. P. 1.380(b) motion for contempt and sanctions, arguing at the hearing that the Court should find that the Plaintiffs’ tactics constituted the “rare circumstance” which justified the ultimate sanction of the striking of the Plaintiff’s claims and dismissal of the lawsuit, plus contempt of court and an award of Brick’s attorney’s fees and costs.  The Court heard Brick’s Motion on June 4 and ultimately issued its Order on September 4 granting all relief requested in the Motion.

504018046-300x200On June 11, Brick Business Law prevailed in the final hearing in a case involving claims of conversion, breach of implied in fact contract and civil theft pursuant to Fla. Stat. 772.11.   Brick represented a national seller of home environmental products which had a long-standing relationship with a vendor for the storage and transportation of its marketing materials.  After the termination of the arrangement, the vendor failed to return the subject property.  Brick’s client made multiple attempts to get its property, but the Vendor refused.  Brick sent the required civil theft demand letter to the future defendant; however, the vendor persisted in refusing to return the property, claiming it was not owned by Brick’s client.  Thereafter, the lawsuit was filed in Hillsborough County Circuit Court.

Florida Statute 772.11 is known as Florida’s Civil Theft Statute.  It carries a higher burden of proof, requiring the Plaintiff to prove the case by a “clear and convincing evidence” standard rather than the “greater weight of the evidence” standard that is prevalent in most civil cases.  The statute permits a Plaintiff that proves that he is the victim of civil theft to recover triple actual damages, attorney’s fees and costs.  However, there is a significant strategic consideration required prior to filing a civil theft claim because if the Plaintiff is unable to prove that his evidence meets the heightened burden, he can be liable for the Defendant’s attorney’s fees and costs.  Despite the risk, Brick pursued the Defendant for statutory civil theft damages.The Court found that Brick’s client’s evidence met the standard required to obtain triple damages, plus attorney’s fees and costs, ultimately rewarding Brick’s client the full amount of damages requested. law-education-series-2-1467427-300x225

Brick Business Law focuses its practice on Florida litigation of business issues.  The firm litigates cases related to the protection and prosecution of business’ interests in regard to breach of contract, civil theft, collections, real estate, consumer, employment and other related issues.  The Firm offers a free initial consultation, which can be arranged by calling the Firm’s main phone number at 813-816-1816 or by visiting the contact page on the Firm’s website.

In the case of Reitz v. Lopez, in the Circuit Court of Hillsborough County in Tampa, Florida, Brick Business Law won a final judgment for the Plaintiff for approximately $100,000 in a hearing held in March, 2018.

law-education-series-2-1467427-300x225The case involved a business dispute whereby the Defendant entered into an oral agreement with Brick’s client to share profits from a proposed internet venture and to pay the Plaintiff wages for the time he spent on the venture.  The Parties worked together for several months during which the Defendant utilized the personal credit accounts of the Plaintiff to run up a substantial debt, supposedly for the benefit of the joint venture, and eventually left the Plaintiff to pay it. The Defendant also stopped paying the Plaintiff his agreed-upon wages for the work he performed for the joint venture.  The Plaintiff was left with tens of thousands of dollars in unpaid credit card debt and several months of unpaid wages.  There was no written agreement in place between the parties and much of the business arrangement was established through various online chats using different usernames over several months.  Despite the significant challenges presented by the lack of a formal business agreement (or even actual conversations between the parties), Brick filed suit against the Defendant for a breach of an implied contract, conversion, civil theft, unjust enrichment and unpaid wages.

The Court ultimately found in favor of the Plaintiff on all counts and also awarded attorney’s fees and costs of the case to Brick’s client.  Additionally, the Court found that Brick’s presentation of evidence satisfied the applicable “clear and convincing evidence” standard under Florida’s Civil Theft Statute.  As such, the Court ordered the Defendant to pay Brick’s client trebled (triple) his actual damages under the civil theft count.

Court-Image-300x200On January 15, 2018, Brick Business Law won a summary judgment motion for approximately $75,000 on behalf of the Plaintiff in the case of Lozon v. FFR Global Inc., et al.  The damages awarded included approximately $10,000 in attorney’s fees and costs.

The case involved a business financing arrangement between a Colorado distributor and a Florida supplier.  The complex structure applied credits, set-offs, interest and payments on inventory shipments to an underlying promissory note entered between the parties.  The founder of the Defendant corporation dissolved the company without repaying the amounts owed pursuant to the financing arrangement.  Brick Business Law sued the dissolved corporation as well as the founder, seeking to pierce the corporate veil, and a guarantor.  The corporation and the founder eventually filed bankruptcy, leaving the guarantor as the sole source of recovery for Brick Business Law’s client.

The guarantor disputed numerous factual contentions of the Plaintiff, including, most specifically, the calculations used to arrive at the claimed damages figures.  Over strenuous argument from the Defendant at the hearing on the Plaintiff’s Motion for Summary Final Judgment, Brick Business Law was able to persuade the Court that there was no genuine issue of material fact and that its client was entitled to the full amount of claimed damages, pre- and post-interest judgment at the highest rate allowable by law, attorney’s fees and costs.   The Court agreed and entered the judgment.

WEB-ONLY-RyanGphoto-20151124-Kevin-Brick-Headshots-0100-CROPPED-300x200One of the questions I get asked most often by new clients is whether someone who files a lawsuit in Florida (or is sued in Florida) can win their attorney’s fees from the opposing party.  Like many legal topics the answer is “it depends.”  I hate giving this answer, which is why I look so serious in the picture on the right.  Let’s go through the basic parameters:

I. Default Rule: All Parties Pay Their Own Attorney’s Fees.

Unless an exception applies, all parties are required to pay their own attorney’s fees.   This is the “default” rule in Florida litigation.  However, there are a lot of exceptions.  Let’s look at the exceptions which allow the “prevailing party” to recovery their own attorney’s fees from the other side.

gavel-1238036-300x201A deposition is a discovery tool used by attorneys to compel witnesses and opposing parties to answer questions under oath.  Generally, they should be used for three purposes: to gather information, to gain admissions and to test out theories of the case.  As a former prosecutor and a business litigator, I have had the opportunity to witness attorneys who were very skilled at taking depositions, but most were not.  When an attorney takes a great deposition, the case and facts become more clear and, as a result, a favorable and faster outcome is likely to occur.  In the best circumstances, the deposition of a party opponent or a key witness is often where the opposing party sees their case fall apart.  This occurs if an attorney’s deposition reveals useful information, gains admissions and successfully undermines (or bolsters) a witness’ credibility as well as the attorney’s theory of the case.

law-education-series-2-1467427-300x225I recently had a business contracts case where we represented a business seeking recourse for the breach of a business contract.  The defendant’s main defense was that it was a third party who signed the contract, not the defendant.  Throughout the course of the deposition, I gained a number of admissions from the defendant which (a) undermined the factual credibility of her defenses; and, (b) gained testimony which supported one of our alternate theories of the case – that the third party had her authority to execute the document on her behalf and that it was reasonable for my client to rely upon this apparent authority; and, (c) gained information about the existence of other documents which supported my client’s positions.  The case settled at the deposition table for full damages plus my client’s attorney’s fees, due to the fact that the opposing party realized in the deposition that we were very likely to win at trial.

The groundwork for making a deposition successful is laid long before the day of the deposition.  Here are some deposition preparation practices which have helped me have success on the day of the deposition:

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