Florida Business Lawyers Blog

Whenever you sign any type of contract, it is important to ensure that you fully understand exactly what you are bargaining to get, especially when you are contracting for something that involves an element of financial risk, such as an investor who contracts to invest in a business venture. As an entity offering such investment opportunities, it is important to ensure that the contractual agreements you create are written in such a way that they will survive a legal challenge from a disgruntled investor. Both of these perspectives highlight the importance of working with skilled Florida business counsel when dealing with investments.

An example of a contract that was able to survive an investor’s court challenge was one used by a South Florida LLC that, in 2013, extended an offer seeking “accredited” investors to invest in a business venture. The business venture was a purchase of a commercial building in downtown Miami and the conversion of that building into office and retail space. In order to participate, the LLC required potential investors to sign a subscription agreement.

In August 2013, Keren signed a subscription agreement. The agreement required her to pay 10% at execution, 20% within 30 days, and the remaining 70% 30 days before the closing date of the purchase of the downtown building. The LLC made the deal for the building and notified investors that the closing date was Jan. 15, 2014. The LLC informed Keren that she still owed $2.47 million. The investor could not make the payment and asked for more time. The LLC offered to connect her with another investor who would advance her the money, but she refused the loan.

When you are involved in a commercial dispute, there may be several hurdles you have to face as the party bringing the lawsuit. One hurdle that some commercial litigation plaintiffs may face is an argument that the case cannot be tried in the location where you’ve filed your lawsuit. Whether your opponent’s challenge is one of jurisdiction or forum, losing this challenge could force you into trying your case in someplace less favorable and more inconvenient for your business. You likely had important strategic and business reasons why you picked the Florida courts, and you should make sure that you have experienced and aggressive Florida commercial litigation attorneys by your side to protect your lawsuit.

An example of a plaintiff that was able to successfully preserve its Florida case was a dispute between a dentist and his clinics’ management services company. An was a dentist with four dental practice offices in north Texas. In 2013, the dentist entered into a territory agreement with a South Florida-based LLC, merging his practices into the LLC’s system. The arrangement called for the LLC to provide administrative and practice management-related services. In exchange, the LLC received a monthly service fee.

In 2016, the dentist cut off the relationship between his clinics and the LLC. That led the LLC to sue the dentist for terminating the parties’ contract without cause. In response to the LLC’s suing in Florida, the dentist asked the Broward County judge to dismiss the case. The dentist’s argument was that the contract he signed with the LLC did not require him or his clinics to do anything in Florida, and, as a dentist located in Texas, he and the clinics did not have enough contact with Florida to give the Florida courts jurisdiction to resolve the dispute.

Whether you are a commercial tenant or landlord, the chances are that you have certain things that your business offers that provide you with a degree of leverage in your commercial lease negotiations. With that leverage, you may be able to negotiate certain advantageous lease terms. The key to getting the most, then, from your commercial lease is not simply negotiating the most favorable lease terms possible, but then also litigating when necessary to enforce those provisions. An experienced Florida landlord-tenant attorney can help you in accomplishing these necessary goals.

One federal case recently resolved by the 11th Circuit Court of Appeals was an example of needing to do both. A major supermarket chain had negotiated certain exclusivity provisions in many of its lease agreements. These terms barred other tenants within the shopping center (and within a certain proximity) from selling groceries.

At some point, the supermarket discovered that there were stores selling groceries that were in violation of the lease terms. To enforce its rights, the supermarket sued. However, instead of suing the landlords, the supermarket sued the other stores — two “dollar” store chains and one discount overstock retailer – for the violations. The supermarket’s argument in its lawsuit was that the exclusivity provisions in its leases were restrictive covenants that the other tenants violated when they moved in and started selling groceries.

Whenever you are negotiating a commercial contract, it is important to make sure that you are focused on all of the details of the agreement, both great and small. It is important because a contract provision that might seem merely perfunctory now may, at some later point, make the difference between a successful outcome and an unsuccessful one in a commercial litigation matter. An experienced Florida business attorney can help as you negotiate your contract and, later, as you litigate your dispute.

One contract that ended in litigation recently was a “Custody Services Agreement” between a Swiss trust and a U.S. bank headquartered in Ohio. That 2011 contract called for the bank to take custody of $428 million in Luxor bonds that belonged to the trust. The bank would hold the bonds for safekeeping and provide certain additional services. In exchange, the trust paid the bank a fee of $90,000 annually.

Two years later, in the summer of 2013, the bank sent the bonds to a third party:  specifically, the original issuer of the bonds. The trust sued the bank for breach of contract in December 2015. The bank, the trust argued, breached the agreement in two ways:  it did not keep custody of the bonds as it had promised to do, and it did not properly safeguard the bonds.

Any time you and your business become involved in commercial litigation, your case may require (or at least benefit from) the inclusion of expert witness opinion evidence to strengthen your claims. Knowing all of the procedural steps necessary to get your expert proof admitted is as important as obtaining a strong expert. When it comes to getting your expert’s testimony on the record in your case, rely upon skilled Florida business litigation attorneys with experience handling these types of cases.

One recent case in which the rules for admitting experts came into play was one with a novel factual background. People familiar with nuclear energy research in the 1980s may remember the phrase “cold fusion,” which refers to creating nuclear energy at or near room temperatures. In 2011, Andrea, an Italian inventor, allegedly invented a cold fusion reactor called “eCat.” The inventor and his Florida corporation entered into a licensing agreement with a North Carolina entity that granted the licensee a limited license to use the inventor’s intellectual property, according to the inventor’s lawsuit.

After entering the agreement, the licensee allegedly never paid the fee to which the parties agreed in the license agreement. The relationship fell apart, and the licensor sued the licensee for breach of contract and misappropriation of trade secrets.

In your commercial litigation case, you’ll inevitably have to make many important decisions as you go through the process. One of these is whether or not to settle the case. A settlement offer not only provides the possibility of finality, but also it creates options for you if the other side rejects the offer, and you achieve a sufficiently successful result in court. An experienced Florida contract litigation attorney can provide significant aid in helping you weigh your options as you contemplate settling your case.

For an example of how a rejected offer can help you, take a federal case from 2017 involving a promissory note. The debt was secured by a piece of beachfront property that the borrower owned. When the debt wasn’t repaid in accordance with the terms, the lender sued for breach of contract. The lender sued the borrower, the guarantors, and the insurance company that had written title insurance policies related to the beachfront property.

The last claim to be adjudicated was the lender’s breach of contract claim against the insurance company. The insurance company offered to settle the claim for $20,000, but the LLC rejected the offer. The insurance company was eventually able to secure a summary judgment in its favor, but not before it had already completed extensive discovery and filed motions in the case, since the trial date was only one month away. After winning that motion, the insurance company followed it up with a request that the court award it attorneys’ fees. Florida has a statute that permits a defendant to recover its attorneys’ fees if, in a case “for damages,” it makes a qualifying offer of judgment, the plaintiff rejects it, and the court ultimately issues a judgment imposing no liability against the defendant.

In any commercial dispute, there are many vital decisions that you’ll need to make. You may have to decide whether to file suit, whether to offer a settlement, whether to accept an opponent’s settlement offer, or whether to take your case to trial. All of these decisions carry with them significant implications; some may even involve your paying your opponent’s attorneys’ fees if you choose incorrectly. With all that is on the line, it is essential to make sure that you have an experienced Florida commercial litigation attorney on your side.

Rejecting an opponent’s settlement offer can potentially carry with it substantial financial implications. One case in which the rejection of a settlement offer was at the center of the dispute was a lawsuit between a railroad and rail-transit contractor and an asphalt production company. The rail company, which was the plaintiff in that lawsuit, decided at one point to pursue a settlement. The rail company sent the asphalt company a settlement offer via email. The defendant received the email but did not accept the offer. The case went to the jury, and they returned a verdict for the plaintiff and awarded damages that were more than 25% greater than what the rail contractor offered in the email to settle the case.

The size of that damages award in relation to the settlement offer was potentially very significant. Florida has a statute, Section 768.79, that says that, if you receive and reject a settlement offer, and the courts award a judgment that is more than 25% greater than the settlement offer (in the case of offers made by the plaintiff, or more than 25% less than the settlement offer in the case of a defense offer), the side that offered the settlement is entitled to demand that the opposing party pay its attorneys’ fees incurred from the date of the settlement offer forward.

When you find yourself involved in a commercial litigation action, there are multiple ways that a party might seek to short-circuit your lawsuit before it ever gets to trial. One way to prevent a case from making it to trial is to argue successfully that the court doesn’t have jurisdiction over the defendants. This can be a strong option if the defendants only have very minimal ties to the jurisdiction. There are situations, however, in which the law says that the defendants are barred from contesting jurisdiction, and you can proceed even if the defendants have no prior contact with the jurisdiction. In short, if you are pursuing a business lawsuit, you need experienced Florida commercial litigation counsel to help you address jurisdictional challenges and any other hurdle that might be placed in your way.

One example of a plaintiff who successfully defeated a defense jurisdictional challenge was a case involving a dispute between a general contractor and a subcontractor. The pair were working on a resort project in the Bahamas. According to the lawsuit that the subcontractor filed, a man named Jesús signed a personal guarantee of the general contractor’s debts. This was significant because, according to the subcontractor, the general contractor didn’t pay its debt to the subcontractor, which was the basis of the subcontractor’s breach of contract lawsuit against both the general contractor and Jesús.

The subcontractor brought its lawsuit in state court in Miami. At the outset of any lawsuit, there are several things you must establish in order to proceed. One of those things is that the court where you’ve filed has personal jurisdiction over the defendants you named in your action. Personal jurisdiction means that the party has a certain level of minimum contact with the jurisdiction where the lawsuit is pending.