Mediation settlement agreements in Florida probates are intended to END your estate dispute. So, why is there so much litigation, and many appeals, over these documents? This free legal commentary will discuss a recent, 2021 case involving an estate settlement. In writing ! What do you do when a court order says one thing, and your settlement agreement says another? [ For those of you who have not attended mediation yet, get ready ! Retired judges say repeatedly that it’s your best chance to get an inheritance. Or end a fight–with a lot less risk than trial. To see a FREE FLORIDA PROBATE VIDEO on how to win at mediation, CLICK HERE. ] How To Read a Settlement Agreement In Florida probate disputes, judges will order the parties to attend a mediation. A mediation is a settlement conference. There is a neutral, third party facilitator, called a “mediator.” She will attempt to foster discussion and see if the parties want to settle. If a settlement is reached, it will be reduced to a written and signed settlement agreement. What happens if there is a dispute over the document? AFTER you settled ? How do you read a mediation settlement agreement ? Here are some bullet points: Read the plain language of the agreement. That’s the starting point. Don’t read too much into it. If the language is clear and unambiguous, then it says what it says and means what it means. Just because you and the other side to your […]

An October, 2021 probate appellate opinion reminds you about probate appeals. Can you get attorneys fees for a probate appeal? Sure ! But don’t ask the appellate court. Here is your key to getting probate appeals attorneys fees in Florida. This is particularly important if you are involved in a will contest or an undue influence case. 3 Things You Need to Read OK, so you are involved in a probate appeal. Hopefully, you had an appellate specialist at your trial. That way, you are prepared for any potential appeal. Whether you lose or win. Remember: if you WIN, the other side can appeal. One issue that you have to consider is: are you going to file a cross-appeal? And, remember, the worst time to think about an appeal is AFTER your probate trial. You need to think about an appeal BEFORE (and at) your estate trial. But, I’m sure that your Florida probate lawyer already explained all of this to you, right? So, you need to read three things when considering Probate Appeals Attorneys Fees. First, read the Florida Probate Code and determine what statute you are going to seek fees under. In Florida, we follow the “American rule”. You only get attorneys fees if you have a statute or a contract. That’s right, you can’t just “ask for” fees. You need authority. [ Hint: start by reading 733.106 and 733.609 depending on your case. ] 2nd, read the Florida Rules of Appellate Procedure so you know how to […]

Every let-down trust beneficiary wants to know if you can get punitive damages in trust cases. The answer is “yes.” You can sue your trustee for punitive damages. ……… But you need to understand the procedure for seeking punitive damages + the basis for wanting them. Otherwise, an appellate court could dismiss your claim for punitive damages. This happened on September 10, 2021 in a Florida appellate opinion. For more information on punitive damages against a trustee, click HERE. For a free video, click HERE. Understanding Punitive Damages in Florida Trust Cases You can’t get punitive damages automatically in Florida. No matter how bad your trustee acted. You have to ask permission from the judge. You have to file a motion to amend your complaint. To now include a claim, or a “count,” for punitive damages. You can read the statute about pleading for punitive damages, which is Florida Statute 768.72. Then the judge will hold a hearing on this. And that’s when the work begins ! There’s 2 reasons for punitive damages: to punish a bad trustee and to deter future wrongdoing. But be mindful that seeking, let alone obtaining, them is not a layup. Go in with your eyes wide open. While seeking punitive damages can be one of the most powerful things an experienced trial attorney can do you for you, know this. Even if you get ’em. There are limitations and the damages can’t be excessive. That’s why many advise trust beneficiaries in Florida to get […]

Florida arbitration or a trial in state or federal court? Seasoned trial attorneys reveal that arbitration is not necessarily all that it’s cracked up to be. While there may be some perceived advantages, can you really be compelled to arbitrate a matter? Let’s consider arbitration in light of a recent Florida appellate opinion. The Arbitration Code Chapter 682 of the Florida Statutes is the Florida Arbitration Code. Arbitration has been described as “private judging.” It’s a quasi-judicial proceeding in a private forum, as compared to a public state court or federal court. It is a forum to resolve a litigation. A lawsuit. Instead of a judge, you get an arbitrator. Sometimes you get a panel of three arbitrators. Who each charge you hundreds of dollars an hour for their services. Yes, that’s right ! Arbitration costs money ! Clauses in Contracts Many times, there are clauses in contracts, and even in wills and trusts, which mandate arbitration. In other words, if you have certain disputes, you cannot have that resolved in a Florida court. Often, there is a disagreement over whether a particular claim, or lawsuit, or dispute, is covered by the arbitration provision. Do you have to arbitrate a fraud claim? And if you start out in state court, if the proceedings keep going, did someone WAIVE the right to arbitrate? And who decides if a claim is “arbitrable” or not: a judge or an arbitrator? (For a brief September 8, 2021 3rd DCA appellate opinion on waiving the […]

Lots of family members involved in a trust or will contest complain that what the other side is doing is baseless. A weird Florida statute gives you the chance to recover some of your attorneys fees as damages. To see how you may be able to get damages (in the form of attorneys fees) against your opponent (or their lawyer), read about Florida 57.105. Florida Statute 57.105– background So, we know that Florida law is generally made up of two things: statutes and caselaw. The legislature creates the laws which the governor signs. Our judges tell us what those statutes mean and how they operate. So, why would you refer to this law as “weird?”. Well, first of all, Florida 57.105 is one of those statutes that seems to create more litigation than it was intended to diminish. Second, it is often mis-understood and incorrectly applied. By the lawyers ! In fact, ask an experienced will or trust litigation lawyer. They will tell you that there are a lot of probate lawyers who say they go to court, but actually don’t try cases. And they often don’t completely understand this statute and when it is appropriate. Here is “everything” you may want to know about Florida 57.105 and even a recent case from the 3rd District Court of Appeal on this subject. 57.105 in easy-2-read, plain-English 57.105 is a Florida statute It provides that sanctions may be awarded against a party in a lawsuit for having a baseless, or frivolous […]

57.105 Florida sanctions is a serious law. Heck, sanctions are serious. If you are faced with a “safe harbor” letter or notice, or a 57.105 motion, here are some things you may want to know. Sanctions in Florida Lawsuits A Florida trial judge has the inherent authority to punish, or sanction, bad conduct. In Florida, there is the inequitable conduct doctrine. For a trial judge to sanction someone, she needs to make very specific findings of fact in her order. Notice of an evidentiary hearing is required. The party who may be sanctioned or punished is entitled to notice and an opportunity to put on a defense. But beyond the inequitable conduct doctrine, there is a peculiar law, or statute, which permits a Florida judge to sanction a party to a lawsuit, and the party’s lawyers, for maintaining (and refusing to withdraw) a frivolous position. This may occur, for example, under Florida Statute 57.105 57.105 Florida’s Sanctions Statute On August 25, 2021, the 3rd District Court of Appeal issued its opinion in Viera v. In Re: Liptito, LLC. The 3rd DCA is the appellate court for Miami-Dade County. This opinion dealt with sanctions in the form of attorneys fees against an attorney. 57.105 is a statute that permits a party to obtain attorneys fees if the other side is doing something frivolous. Put another way, this law may be a path to get a lawsuit dismissed. That’s because the threat of being sanctioned sometimes compels a party or their counsel […]

Being an aggressive litigator is what a lot of clients want. But you also need to know how to play defense. In football, when a team is up by only a few points and has the ball. You have to decide: do you go for it, or punt and “trust your defense?” Well, understanding affirmative defenses is an often overlooked part of probate and trust litigation. We think affirmative defenses Florida are so important that we gave a Florida Bar-approved continuing legal education seminar on this very topic. Now, let’s talk a bit about this subject, and a recent case. Admitting Facts but Avoiding Liability When you are served with a lawsuit, you receive a copy of the complaint. To start a lawsuit, a complaint is filed. When you receive a copy of the complaint, you have 20 days to respond. You can read more about timetables and how a case proceeds by reading the Florida Rules of Civil Procedure. Check out Florida Rule of Civil Procedure 1.140 When you “answer” the complaint, you may raise affirmative defenses Florida. Affirmative defenses are not simple denials. Affirmative defenses are the type of “yea, but…..” defenses. Think of them this way: even if the allegations or accusations in the complaint are true, you still win ! Examples of common affirmative defenses include statute of limitations and accord & satisfaction. Failure to properly raise affirmative defenses means that you waive those defenses. 4th DCA Opinion on Affirmative Defenses Florida — must read On […]

Forgery is serious business. And, in Florida, such allegations are not new or out of the ordinary. Do you know how many people allege that a will or trust was forged? Or, rather, that mom or dad’s signature on a will was a forgery? Understanding the law of forgery is important to winning your case. Perhaps even more so if you are defending a signature or deed that is alleged to be a forgery. So, whether you are claiming a forgery occurred or are answering a Florida forgery lawsuit, here is some helpful insight to your Florida lawsuit. (For a free Florida probate video on whether a will is a forgery, simply click HERE.) A Forgery….. really? So, if you ask any serious, experienced, probate trial lawyer, what would they say? They would say that very few forgeries are proven. Maybe because in most cases, clear and convincing evidence is required to prove a forgery. Maybe because forgery is such a brazen act, right? Often times, forgeries are not alleged (discovered) until one passes away. I mean it’s rare for a living person to learn that her signature was forged. One of the best ways to learn a lot about a legal topic quickly to is read appellate opinions. You know, cases. What judges write. To read a 2017 Florida appellate court opinion on forgery, CLICK HERE. But in many cases, that’s exactly what happens. Mom or dad die in Florida. There’s a deed going to someone. And family members […]

Faced with a motion to compel arbitration? On August 18, 2021, an appellate opinion was rendered dealing with waiver of arbitration in Florida. If you are involved in a lawsuit, and arbitration is discussed, you want to read this case. To read more FREE FLORIDA LEGAL COMMENTARY about arbitration in Florida, CLICK HERE. What? Many contracts from corporations have a mandatory arbitration clause. Arbitration is a private court with a private judge. No cameras no public access. No jury trial. Those clauses in contracts generally state that any disputes have to go arbitration. NOT state or federal court. There are different ways to handle an arbitration. Your contract can spell out those rules, or rely on rules and procedures from organizations like AAA or JAMS. While many people like the “private” nature of arbitration, experienced trial lawyers may provide greater insight. Advantages? I think that a real trial attorney would tell you that there are not a lot of cost or fee savings with an arbitration vs. a trial in a Florida court. State or federal. In court, you don’t pay the judge. In arbitration, you pay the arbitrator, anywhere from about $500- $800 an hour. Some contracts require you to have a panel of 3 arbitrators! Big arbitration bill for the arbitrators. And in Florida state court, seniors can try to get an expedited trial. So, is arbitration really faster and less expensive? If a lawsuit is filed, the defendant may try to force you to arbitration. Deciding if […]

Triple damages, interest and attorneys fees. There is a LOT at stake in a civil theft Florida lawsuit. Read more about this topic and an August 18, 2021 opinion from a Florida appeals court that discusses entitlement to attorneys fees. Why Civil Theft? Florida’s civil theft law permits a civil recovery of damages for certain crime victims. And also financial exploitation of the elderly. But be careful. There are only certain crimes that you can recover civil damages for. Read Chapter 812 of the Florida Statutes. Those statutes deal with theft, robbery and crimes. There is an entire set of laws on getting civil remedies or damages against someone who commits a crime against you. You can read the Civil Theft Statute for free by clicking HERE. Civil theft laws do have special rules. For example, you can only get damages in a civil lawsuit for certain crimes. Read 812.012- 812.037 and 825.103(1). For a free legal video on damages, and interest in Florida civil theft cases, CLICK HERE. Civil Theft Florida in Trust and Estate Cases Is it possible for a family member or beneficiary to sue a trustee or another wrongdoer for civil theft in an estate or trust? The answer is yes. Our appellate courts use the term defalcation when describing a trustee who improperly takes trust property. And estate executors in Florida probates have the same duties as a Florida trustee. But, experienced probate litigators caution, have your eyes wide open. “Proving civil theft is not […]