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No business, neither big nor small, has proven to be immune to the rapidly increasing threat of the coronavirus (COVID-19) that has significantly disrupted commercial operations all over the globe. In response to this pandemic, public and private enterprises have implemented procedures to slow the spread of the coronavirus, including closing facilities and ceasing operations. As a result, businesses are now evaluating their options concerning performance of their contracts. Accordingly, it is critical for these businesses to be aware of the various defenses available to potentially excuse nonperformance of their contractual obligations in these uncertain times. One of these defenses is to invoke a force majeure clause contained in a contract.

A force majeure clause in Florida is a standard contractual clause that permits parties to allocate the risk of loss if performance becomes impossible or impracticable due to “force majeure events,” such as acts of God, hurricanes, earthquakes, epidemics, terrorism, government acts, labor strikes, and lock-outs, among other things. The Florida Supreme Court, in holding that a hurricane constituted and act of God excusing a party’s performance under a contract, defined such an act as follows:

An act of God, such as will excuse nonperformance of a legal contract, must be an act or occurrence so extraordinary and unprecedented that human foresight could not foresee or guard against it, and the effect of which could not be prevented or avoid by the exercise of reasonable prudence, diligence, and care or by the use of those means which the situation of the party renders it reasonable that he should employ.[1]

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A summary judgment can be an important tool and a huge benefit in your commercial litigation case. A summary judgment on liability, for example, means that the court can decide the issue of liability without even having to have a full trial on that. A summary judgment in your favor, if you’re the plaintiff, means that, in addition to your not having to worry about proving liability at trial, it also keeps out any affirmative defenses the other side had if those defenses only relate to the question of liability. To do that though, you need all of the right documentation and other evidence, along with all the proper arguments, which is why it helps to have a knowledgeable Florida landlord-tenant attorney handling your case.

A recent commercial lease dispute case was a good example. The tenant and its landlord had a five-year lease. Like many commercial lease agreements, this one included a guaranty. The guaranty said that the guarantor promised “the due prompt and punctual performance of all obligations of, and the prompt payment when due.”

Problems emerged, the landlord told the tenant to vacate the space and the tenant sued the landlord for illegal self-help because, allegedly, the landlord changed the locks on the space and refused the tenant entry unless it paid rent. The landlord countersued for breach of contract and for unpaid rent. The landlord’s countersuit also named the guarantor as a party.

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Whenever you decide to go to court after a contractual partner has breached your commercial contract, there is some risk that the other side could, at some point, seek an award of attorneys’ fees. In addition to fighting for your contractual rights under the agreement generally, your skilled South Florida commercial litigation attorney can also help when it comes to this issue of attorneys’ fees. If the party whom you’ve sued is wrongfully seeking attorneys’ fees, it may be incumbent on you to persuade the court that the other party doesn’t qualify for such an award.

First, it is important to note that, in any Florida civil litigation, a party generally must be a “prevailing party” under this state’s law in order to potentially qualify for an award of attorneys’ fees. That is exceptionally important because, of course, commercial litigation actions can be complex and who is or is not a “prevailing party” under Florida law may not necessarily be clear. This can happen for many possible reasons. Maybe you litigated to a verdict and your judgment was a mixed bag of favorable and unfavorable rulings. Alternately, perhaps you and your legal counsel decided it was in your best business interests to dismiss the lawsuit.

That latter scenario is what happened to one entity in Collier County in its case. The entity, an operator of a residential community near Naples, had signed a contract for the provision of cable services as well as treated wastewater for irrigation.

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Rarely have truer words been written into the first sentence of a court opinion than last year, when a Florida appeals court declared that the “tiniest words can have the greatest consequence.” If you work within the field of high-dollar commercial contracts, you probably know that to be true. If you are simply preparing to get married, the intricacies and minutia of the law of contract drafting may not be at the forefront of your mind. That’s why you should make sure you have an experienced Florida prenuptial agreement attorney representing you. Just like any other contract, the inclusion or exclusion of as little as a single word may completely change the outcome of your situation, costing you (or gaining you) massive sums. When millions are potentially on the line, don’t take chances.

A case from across the state is a good example of just how much can be riding on just one word. M.F. was a successful entrepreneur. M.F.’s fiancee, J.L., was a lawyer in the Sarasota area. A few weeks before the couple wed in 2006, they signed a prenuptial agreement. The agreement called for a cash payout from the husband to the wife in the event of a divorce, with the amount of that payout increasing over time. The document specifically said that the husband was to pay to the wife within 90 days, “of the date either party files a Petition for Dissolution of Marriage the amount listed below next to the number of full years they have been married at the time a Petition for Dissolution of Marriage is filed.”

That all seems somewhat straightforward, right? In some circumstances, it could have been, not always. That’s why you retain the most skillful attorneys to draft any contract for you, including a prenuptial agreement. Because, as the old saying says, the “devil is in the details” and imperfect drafting can leave you vulnerable to possible ambiguity.

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In many of the courtroom drama shows one sees on TV, each episode contains at least one “a-ha!” moment where some previously undiscovered small detail suddenly changes the course of the entire trial. Sometimes real life is not like that but, other times, it is a seemingly small thing that proves to be of large importance.

That’s true in commercial litigation, as well. When you’ve been sued, one of the first things you’ll need to know is whether or not the plaintiff actually has a legal right to recover from your business. Sometimes, the answer to this question lies in some seemingly intricate details. To protect your business interests, be sure you have an experienced South Florida commercial litigation attorney who knows how to spot these details and also knows when to “sweat the small stuff.”

As an example of this concept, a recent case from Orlando is a helpful illustration. An operator of schools and daycare centers took out a commercial loan from a bank. The borrower signed a promissory note, loan security agreement and guaranties.

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When your commercial contractual relationship ends up in dispute, there are many intricate details involved in the commercial litigation that follows. There are multiple nuanced elements or decisions that may, on the surface, seem small but could have enormous impacts on the success of your case. The difference between winning and losing may be a single sentence or word in your contract… or it could be the difference between bringing your lawsuit in Broward County as opposed to Miami-Dade County. An experienced South Florida commercial litigation attorney can show how to consider all these nuances and best position yourself for success.

A very recent lawsuit was a case in point. The action was a breach of contract case between a Broward County property management firm and the South Florida pest control service provider it retained to eradicate a termite problem the management company was having at its property. During the litigation, the management firm, who was the plaintiff, submitted to the pest control company an offer of judgment of $500,000. That offer represented a settlement amount to cover all “claims for damages, including punitive damages, attorney’s fees, costs, and interest.” The exterminator, however, declined the offer.

The case eventually went to a jury, and they found that the exterminator had breached the contract and that the management firm had suffered $551,000 in damages.

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Many business people involved in negotiating and executing commercial contracts may understand the importance of awareness of even small details with that agreement. However, that same level of attention to detail is just as important when it comes to litigating a commercial contract dispute. The difference between owing hundreds of thousands of dollars in sanctions or not may derive from exactly what is, and what is not, in a court’s order. In other words, whether you’re negotiating a deal or litigating in relation to an existing contract, it pays to have skilled South Florida commercial litigation counsel to “sweat the small stuff” on your behalf.

A pretty good example of this concept on display was a recent case from Miami. The owner of a property in Miami-Dade County hired a South Florida-based architectural firm to provide architectural services for a development project at the property. Problems arose and, eventually, the architectural firm filed for a lien, arguing that the client failed to pay its bill.

First, a mediation was begun between the two sides. Eventually, the architectural firm voluntarily initiated an arbitration proceeding, which again pertained to the client’s alleged failure to pay for services rendered. The owner filed a request asking the trial court judge to enter an injunction that would force the parties to litigate the issues in court instead of going through arbitration. The trial judge summarily denied that request, with no explanation or additional details.

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A recent ruling from the U.S. Supreme Court addressed an important question that may impact many commercial entities considering Chapter 11 bankruptcy. For (potential bankruptcy debtor) entities that are also trademark licensors, what happens to the licensee’s rights if the license is rejected in bankruptcy? While the court’s ruling limited power of rejection somewhat, providing some good news for licensees, it stopped well short of giving licensees unfettered rights after a rejection. In other words, if your entity is a holder and licensor of trademarks and is considering bankruptcy, Chapter 11 may be a viable option. Consult a knowledgeable South Florida bankruptcy attorney to help you make the best choice for your business.

The case upon which the high court ruled this spring involved a manufacturer of athletic wear with cooling technology. The manufacturer also held several trademarks which it had licensed. One of the licenses the manufacturer had issued, as part of a co-marketing and distribution agreement, was to a New York-based provider of cooling towels and other cooling items for athletes.

The manufacturer filed for Chapter 11 bankruptcy in 2015. At that time, the New York licensee still possessed its license to use the manufacturer’s trademark. The manufacturer sought to reject the New York licensee’s rights under the distribution agreement as part of its bankruptcy action.

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In November, new federal regulations went into effect that made it harder to obtain an EB-5 investor visa. Now, steps are being taken in various places to attempt to roll back these new regulations. The new regulations are being challenged in the federal courts. Members of Congress are also considering a new bill to ease its effects. What you should take away from all this is that EB-5 remains a viable option for obtaining a visa but that the rules are potentially changing. To make sure you are best positioned to respond to these changes and get the visa you seek, be sure you have a knowledgeable Florida immigration attorney representing you.

The new rules went into effect with an ostensible goal of curbing fraud and other misuse of the EB-5 visa program. The changes meant that the minimum amount that a foreign citizen was required to invest in order to qualify for an EB-5 visa went up to $900,000 (from $500,000) in targeted employment areas, and up to $1.8 million (from $1 million) in all other areas. The regulations shifted the responsibility for designating targeted employment areas from the states to the federal government.

The new regulations also shrank the number of areas that qualified as targeted employment areas. This change has the potential to have a massive impact on development in parts of Palm Beach and Miami-Dade Counties, which would stand to lose targeted employment areas in several key areas.

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Business is more global than ever these days. With that comes many benefits. It also, however, raises the possibility of your being hauled into court in far-flung places in commercial litigation actions like breach of contract lawsuits. When that happens, you may have the possibility to avoid litigating in that place if you can show that the courts there don’t have jurisdiction over your business. To do that in a Florida case, though, you’ll need skillful South Florida legal counsel who can make the jurisdictional arguments you need.

A recent case from here in South Florida addressed the issue of what does or does not amount to the required amount of “minimum contacts” necessary to trigger the jurisdiction of Florida’s courts. The case involved one Miami-Dade County entity and one very long-distance entity. A Doral-based food company had allegedly contracted with a Canadian heating-and-air-conditioning (HVAC) company for the installation of an industrial air vacuum machine. At some point, the business relationship deteriorated, and the client sued the HVAC company for breach of contract.

The factual details of what went wrong between this Florida company and its Canadian contract partner weren’t really the most instructive part of this case. Rather, it was the issue of jurisdiction that would become the key. (The Canadian company sought to get the case thrown out of court by arguing that the Florida courts did not have jurisdiction over it.)