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Category: In the News

Florida Trust Accountings–recent case sheds light on TRUST APPEALS

In the News May 9, 2021

An April 29, 2021 appellate opinion sheds light on Florida Trust Accountings and final orders. Most Florida trustees know that you can give a six month “limitation notice” to a beneficiary. Most beneficiaries don’t really understand that you may only have 6 months to sue for breach of trust. This recent case discusses the “finality” of an order on a Florida Trust Accounting. That final order can’t be changed except under three very unique scenarios. Keep reading to learn more about trust appeals. (For a free legal video on trust accountings in the State of Florida, CLICK HERE.) Florida Trust Law on Beneficiary Rights — but watch the clock ! First and foremost, trust beneficiaries have a lot of rights in Florida. You can read all about those rights under the Florida Trust Code. That’s chapter 736 of Florida Statutes. To read about the obligations and duties of a Florida Trustee, read Trust Code Statutes 736.0801-736.0817. As a beneficiary, you have a right to know who your trustee is and to a complete copy of the trust document. That includes any amendments, restatements or changes. You can also obtain annual trust accountings. A trustee cannot operate or run the trust in secret. There needs to be full disclosure. But, trust beneficiaries can’t wait forever to exercise their rights. Sometimes you have 4 years to sue for a breach of trust. And sometimes only 6 months. If you are involved in a court case, any order from a judge may have […]

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Florida Lawyer Disqualification + Conflict of Interest

In the News Mar 28, 2021
post about Florida Lawyer Disqualification + Conflict of Interest

Filing a motion with the court to disqualify your opposing counsel is serious stuff. A March 26, 2021 opinion from the 5th District Court of Appeal, Florida, sheds light on this. We have previously discussed ATTORNEY CONFLICT OF INTEREST before. Now, let’s get an update. Lawyers and Ethical Duties The Florida Bar imposes many ethical duties on lawyers. They can be found HERE. Check out Chapter 4 on Professional Conduct. Not only is a lawyer required to be loyal to clients, and work hard, but you should avoid conflicts of interest. A Florida lawyer who is “adverse” to an existing client may be disqualified from that case. After all, a Florida attorney is not supposed to be adverse to, or against, an existing client. In other words, lawyers don’t sue clients. Or take a position that hurts a client. Now, this does NOT mean that a lawyer has to do everything a client wants. We are not talking about a sincere fundamental disagreement on a case, for example. In many situations, a Florida attorney is also prohibited from being adverse, or against, many former clients. A March 26, 2021 Florida Lawyer Disqualification opinion was issued by the 5th District Court of Appeal. To read this opinion CLICK HERE. This DCA case also speaks about lawyers’ conflicts of interest. Florida Probates + Florida Lawyer Disqualification We have previously written about Florida probate matters and Florida Lawyer Disqualification . And there has been good legal commentary on CONFLICTS OF INTEREST. Perhaps one […]

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Restrictive Covenants in Florida Contracts

In the News Mar 24, 2021
post about Restrictive Covenants in Florida Contracts

Restrictive covenants in Florida contracts were front and center on March 17, 2021. The 4th DCA issued its opinion regarding a Broward County real estate commission dispute. If you are involved in Florida contract litigation , is your restrictive covenant valid or void? Restrictive Covenants in Florida Florida sells a lot of real estate. Houses, condos, warehouses are built, renovated and sold, and re-sold, hundreds of times. And while aspects of contract law are pretty clear in Florida, people may know less about restrictive covenants. Restrictive covenants are serious promises or limitations which one party agrees to. They may involve land or something very personal like services. Florida Restrictive Covenants can be thought of as rights which are granted to another. What if agree with everyone in your housing development not to build higher than 3 stories? In real estate law, sometimes that is referred to as a restriction that “runs with the land.” It can be passed down to future owners. It supposedly benefits your neighbors and it burdens your land or house. In the employment context, many of you know about non-competes. Non-competes are typically found in employment contracts. They restrict an employee from doing certain things, typically when they leave employment. Such as soliciting or accepting business from your former company’s clients when you leave. Or from working in the same field. Most of those restrictions in a Florida non-compete need to be reasonable as to duration (time) and geography (location). But what about a Florida real […]

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Florida Proposal for Settlement Case 768.79

In the News Mar 18, 2021
post about Florida Proposal for Settlement Case 768.79

A unique, and, often misunderstood, Florida Law can get you attorneys fees under the right circumstances. We have previously written about Florida Statute 768.79 and Florida Rule of Procedure 1. 442. A recent, March 17, 2021, appellate opinion from the 2nd District Court of Appeal tells us more about what some lawyers call the “offer of judgment” statute. We have previously written about service of proposals for settlement. So called “Fee Shifting” statutes are common in Florida Probate and Trust matters. They are less common, almost non-existent, in tort cases. Ending Litigation or Creating More? The proposal for settlement statute was intended to limit litigation. But it causes a lot of motions to be filed and a lot of appeals to be taken. Want to read a recent 2nd DCA case about Florida proposal for settlement or offer of judgment? Then simply click on Arizone v. Homeowners Choice Property & Casualty Ins. Co., Inc. You also need to read Florida Rule of Civil Procedure 1.442. “A proposal for settlement can be an effective way to end a lawsuit” says Florida litigation attorney John Pankauski. He spends time preparing Florida proposals for settlement and reviewing them when they are sent to his clients. “They can also be an effective way to seek attorneys fees” Pankauski continues. That’s because Florida follows the “American Rule”. The American Rule says that each party pays their own attorneys unless there is a statute or a contract. “In many non-contract cases, a settlement proposal under the […]

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Florida Temporary Injunction

In the News Mar 11, 2021
post about Florida Temporary Injunction

A March 5, 2021 decision from the 2nd District Court of Appeal sheds light on Florida temporary injunctions. We have provided solid Florida legal commentary about injunctions before. Why now? Read on ! 4 Requirements How do you win a temporary injunction? There are generally four requirements that you must show or prove. Here they are: (1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest. “We have filed and also defended motions for temporary injunctions” says Trust + Estate Litigation Lawyer John Pankauski. “We are very familiar with Rule 1.610 and the caselaw. We know what is required to win.” Florida Temporary Injunctions for Estates and Trusts Be sure to read Florida Rule of Civil Procedure 1.610. Following that rule is key to obtaining an injunction. Many estate beneficiaries and family members want probate assets frozen! Many believe, whether correctly, or incorrectly, that estate money may be mis-spent, taken or squandered. What about Florida trusts? Under the Florida Trust Code, trust beneficiaries know that a judge can freeze a Florida trust. A “freeze” is a Florida temporary injunction. Want to read more about what a Florida Trust Judge can do? Consider reading 736.0201 and also 736.1001 of the Florida Trust Code. Or read this new opinion about Florida temporary injunctions. What You Need to Know! Why do so many estate and trust beneficiaries want to know about Florida temporary injunctions? […]

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Text Messages in Florida Lawsuits + Litigation

In the News Mar 3, 2021
post about Text Messages in Florida Lawsuits + Litigation

Are those text messages that everyone sends and receives “discoverable” in your Florida litigation? In 2021, text message admissibility is important ! Maybe…………..maybe not! Whether those text messages in Florida lawsuits can be admitted into evidence is an entirely different question! Afterall, once your trial lawyer gets over the “relevance” hurdle, she has to lay a foundation and get those out-of-court statements in over an anticipated/expected “hearsay!” objection from your opposing counsel. A recent case from Florida’s 4th District Court of Appeal discusses text messages in Florida lawsuits, as well as Florida evidence and the authentication and admissibility of data and documents. Florida Evidence & Text Messages Has your Florida probate lawyer asked you about e-discovery? Maybe she told you to preserve all evidence and to retain all laptops, iPhones, cell phones, iPads, tablets, computers, text messages and emails. Oh, yes, she probably also told you to suspend any “self deleting” mechanisms on your electronic devices. Oh, yes, and I’m sure he instructed you not to delete any communications and documents, either. After all, you don’t want to lose any of that data which you are going to be COMPELLED to produce in your Florida lawsuit. Very good ! Great start! Now, let’s say that the other side to your Florida litigation has text messages to use against you. One question which I know your lawyer has asked you is about text message admissibility: Are your text messages admissible in your Florida lawsuit? A recent, September, 2020, Florida appellate opinion […]

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Fraud on the Court: “Everything” You Need to Know

In the News Mar 2, 2021
post about Fraud on the Court: “Everything” You Need to Know

Two recent opinions from Florida appellate courts tell you everything you need to know about Fraud on the Court in Florida (almost !). Although we have provided free commentary + legal videos on this issue before, these two new opinions are helpful & instructive. What is Fraud on the Court? Fraud on the court “occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of act or unfairly hampering the presentation of the opposing party’s claim or defense.” That quote is from the Florida Appeals Court in Palm Beach, also known as the Fourth District Court of Appeal. That case was Amato v. Intindola, 854 So. 2d 812, 814 (Fla. 4th DCA 2003) (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998)). Want to read more about Fraud on the Court from the 4th DCA? Check out this January 6, 2021 opinion in the case of Gleman vs. MWH Americas, Inc. The Gleman opinion also discusses what a sham pleading is under Florida Rule of Civil Procedure 1.150. What Can A Florida Court Do ? A Florida Court has the discretion to dismiss a party’s pleadings based upon fraudulent conduct. Cherubino v. Fenstersheib and Fox, P.A., 925 So. 2d 1066, 1068 (Fla. 4th DCA, 2006). “A trial court possesses the discretion to dismiss a complaint [or strike a […]

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NetFlix I Care a Lot & Florida Guardianships

In the News Mar 1, 2021
post about NetFlix I Care a Lot & Florida Guardianships

In Florida, guardianship business is booming — for good or for ill. Every week, perhaps every day, family members are asking a Florida Probate Court to declare an adult “incapacitated” or “incompetent“, remove or limit their rights and powers to act alone, and appoint a Guardian. Many times, a guardianship means that you limit access to one’s money !! We have written about “contested” Florida guardianships before, where family members duel over controlling a parent or their purse. Now, Netflix has a popular and new 2021 comedy, crime thriller called “I Care a Lot.” Will this popular streaming movie shed light on financial exploitation and financial abuse? Although it’s fiction, I Care a Lot is getting a lot of attention from people involved in Florida guardianships. I Care a Lot + Guardianships Florida guardianship law is found in Florida Statutes Chapter 744. This explains the entire Florida guardianship process. How do you start a guardianship? (file a petition). What if there is a Power of Attorney (consider lesser restrictive alternatives to a guardianship). “There’s actually two cases you need to start a Florida guardianship” says guardianship litigator John Pankauski. “You file a mental health case which suggests that a Florida resident is not competent and needs some protection and assistance” says Pankauski. “Then, who is going to provide that protection and assistance? You need a guardianship matter.” Pankauski should know. He leads a boutique law firm in Palm Beach which restricts its practice to so-called “probate litigation” which typically means […]

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Jeffrey Epstein and GRATs

In the News Feb 13, 2021
post about Jeffrey Epstein and GRATs

Jeffrey Epstein was back in the news in 2021. This time, the focus was on a unique and sophisticated estate planning technique called a GRAT. We had previously provided insight on Jeffrey Epstein’s estate and potential creditors of the now deceased Palm Beach resident. So, what is a GRAT? Why are Florida families and trustees litigating about these Florida trusts? What is a Florida GRAT? What is a Florida GRAT? GRAT is short for Grantor Retained Annuity Trust. “It’s a fantastic, low risk estate planning technique that can literally save millions, even billions, in estate taxes if done correctly” says Palm Beach trust litigator John Pankauski. And Pankauski should know. After all, he was reading the IRS federal regulations on GRATs back in the early 90’s and writing them for wealthy clients over 20 years ago. Today, he doesn’t write or draft GRATs. He and the handful of expert litigators at his firm now only litigate and handle appeals for GRATs. Jeffrey Epstein GRATs With a GRAT, the creator, or settlor of a special trust irrevocably transfers property to her trustee. The grantor of the GRAT retains, or keeps, an annuity stream for a fixed term–such as a number of years. With a properly drafted or written GRAT, the savings can be amazing. But you also need the right family asset and a good appraiser. Why do these things matter? Because the amount that is transferred (or “gifted”) for federal gift tax (or estate tax) purposes can be very small […]

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Britney Spears Guardianship — removing your guardian

In the News Feb 13, 2021
post about Britney Spears Guardianship — removing your guardian

The conservatorship of Britney Spears is in the news again. You may have read some of our blogs on Britney Spears and Florida guardianships in the past. After all, Pankauski Hauser Lazarus is one of the few boutique litigation law firms that restricts its practice to Florida guardianship trials. Let’s discuss a very recent update on the guardianship of Britney Spears, first reported in the New York Times. ( February 9, 2021: Britney Spears Conservatorship Case Heads Back to Court). Why do Florida families care about the Britney Spears Guardianship? What if Britney Spears Guardianship Was in Florida? Some states refer to an adult guardianship as a “conservatorship.” In Florida, most probate divisions of the Circuit Courts exclusively handle all guardianships. And, remember, Florida guardianships are not just for minors or those people who are under 18. “For good or for ill, guardianship lawsuits have increased in the 25+ years that I’ve been admitted to practice law in Florida.” says John Pankauski, Managing Member of Pankauski Hauser Lazarus, a boutique guardianship and probate litigation law firm. Well if the Britney Spears Guardianship was in Florida and not California, the Florida Guardianship Code would apply. Changing Your Guardian in the Guardianship Court In Florida, the “guardianship court” is actually the Probate Division of the judicial circuit where the alleged incapacitated person, or “ward”, resides. Probate courts have exclusive jurisdiction over Florida estates, Florida guardianships and most of the time Florida trusts. In the case of the Britney Spears Guardianship, Ms. Spears […]

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