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Category: In the News

Florida 57.105 — getting attorneys fees damages from the other side

In the News Sep 6, 2021
post about Florida 57.105 — getting attorneys fees damages from the other side

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 […]

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57.105 Florida Sanctions

In the News Sep 1, 2021
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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 […]

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Affirmative Defenses Florida — what you need to know

FAQs Sep 1, 2021
post about Affirmative Defenses Florida — what you need to know

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 […]

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Forged Deeds in Florida

In the News Aug 30, 2021
post about Forged Deeds in Florida

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 […]

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Waiver of Arbitration Florida

In the News Aug 24, 2021
post about Waiver of Arbitration Florida

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 […]

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Civil Theft Florida

In the News Aug 22, 2021
post about Civil Theft Florida

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 […]

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Florida Administrator Ad Litem + Conflicts of Interest

In the News Aug 8, 2021
post about Florida Administrator Ad Litem + Conflicts of Interest

When should a Florida probate court appoint a Florida administrator ad litem? A recent Miami Dade Appeals Court case discusses this issue. If you are involved in a probate that involves conflicts of interest with the executor, read on. We have previously provided free, helpful FLORIDA PROBATE VIDEOS on similar topics, INCLUDING conflicts of interest in Estates. Estate Conflicts of Interest We all know that a personal representative runs the Florida estate. But what do you do if the personal representative has a conflict of interest? Generally a conflict of interest arises when the Florida Personal Representative’s duties to estate beneficiaries and family members conflicts with her own personal, or individual, interests. A common example is when the Personal Representative wants to buy an estate asset. She has a DUTY to get the best or highest price. But she, personally, may want to pay as little as possible. What do you do when there are MILLIONS in the estate? To read about an executor’s duties, click HERE. When that occurs, experienced probate litigation attorneys may ask the probate judge to appoint a Florida administrator ad litem. But what’s that role? Florida Administrator Ad Litem Role The Florida Probate Rules discuss the role of an estate administrator. It’s common to appoint one when there are conflicts of interest. Or, sometimes if you need a temporary person to run the estate. Additionally, one may be appropriate if there are “dueling” petitions for the appointment of a Personal Representative. After all, if everyone […]

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Florida Power of Appointment

FAQs Jul 28, 2021
post about Florida Power of Appointment

A Florida Power of Appointment might mean that you inherit millions. Or not. Certain family members and heirs may be entitled to know about these odd “creatures” hidden in a Florida Trust Document. If you don’t inherit under a power of appointment, you may or may not have rights to find out WHY you did not inherit. One of the most frustrating things about them may be that your mom or dad has the right–the power!– to give you money or property. A January, 2021 case from Florida’s 1st District Court of Appeal discusses this legal topic. To learn more, read on. Where Can I Read More about Florida Power of Appointment? To read about Florida Power of Appointment, there are two places to start. First, start with Part 1 of Chapter 709 Florida Statues. Most people think of Chapter 709 as dealing with Powers of Attorney, like a durable power of attorney. That’s Part 2. Part 1 deals with Florida power of appointment. Second, did you know that someone with a power of appointment can bind other beneficiaries or even family members? Read a very specific part of the Florida Trust Code. Read 736.0302, Florida Statutes. This is super important. Why? Understanding the Basics A person who creates, or gives, or grants, a power of appointment is called the power creator. A power of appointment is the right, but not necessary an obligation, to give away property. To “appoint” certain property, or a property interest, to others. A person […]

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Breach of Fiduciary Duty Florida

In the News Jul 28, 2021
post about Breach of Fiduciary Duty Florida

A January 2021 Florida appeals court opinion deals with breach of fiduciary duty Florida. If you are a beneficiary of an estate or trust, listen up. If your fiduciary is not behaving properly, you may be able to sue for breach of fiduciary duty. Against an estate executor or trustee. A January, 2021 case deals with breach in an important trust context. If a trustee’s bad acts are serious enough, they can be REMOVED as trustee. Knowing all your remedies as a beneficiary is key to your case. This can include getting your attorneys fees paid, SURCHARGING your trustee, making her account, getting her to return compensation and fees. But, beneficiaries be aware of very short STATUTES OF LIMITATIONS which may be only months-long. Breach of Duty by Trustees in Florida A trustee’s breach of their duties is serious business. First, trustees in Florida owe a lot of duties to their beneficiaries. Heck, read the Florida Trust Code to learn more about trustees and Florida trusts. A breach is like a broken promise. If damages are caused, the trustee can be liable for those damages, SURCHARGE and even your attorneys fees and costs. But you have to have STANDING to sue the trustee. You have to have some legal connection to the trust or the trust property. And before you run off and sue your trustee, consider this. If you lose, your trust share, or you, may have to pay the trustee’s attorneys fees. There are fee shifting laws in […]

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Challenging a Trust Before Death

In the News Jul 26, 2021
post about Challenging a Trust Before Death

Can you object to a revocable trust before the trust creator dies? You are not supposed to under Florida law. There are two things every potential challenger MUST READ. If you are thinking of contesting a trust or challenging its validity, read on. We have previously provided Florida Trust Commentary on such things as trust validity, trust attacks and undue influence. Now, let’s focus on a September 9, 2020 4th DCA opinion. (for a link to FREE TRUST VIDEOS, click HERE) 2 Things You Must Read Before Attacking a Trust Challenging a trust before death? Not so fast !! So, let’s be clear. You can’t attack a revocable trust while the trust creator is alive. The person who creates the trust is called the “grantor” or “settlor.” The attorney who writes the trust, or who prepares the trust for the creator, is often referred to as the “drafting attorney.” The Florida Trust Code is the body of statutory law laying out trust laws. It is added to by precedent. Precedent are the written opinions of our appellate courts. Trial courts, and appellate courts, interpret the Florida Trust Code. Judges tell us what the law means and says. When trial judges make trust rulings, appellate court judges will tell us whether the trial judge was correct or not. When a trial judge is wrong, it is referred to as committing error. Now, read Florida Statute 736.0207. This statute is a provision in the Florida Trust Code. It says that you can’t […]

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