Articles Posted in Commercial and Business

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The coronavirus-triggered shelter-in-place and social distancing requirements of 2020 have created, or at least hastened, changes in all walks of life, including in the world of business. Negotiations that might once have occurred face-to-face now might take place over a Zoom conference. Some businesses are, when it comes to their commercial contracts that once would have been executed with ink on paper, reconsidering whether those agreements can be signed electronically. With these new changes come new legal challenges, including ensuring that the methods you’ve used comply with Florida law in order that your end result will be an enforceable contract. Always be sure to rely on the advice of an experienced South Florida commercial contract attorney when it comes to executing such a contract, in order to ensure the contract with which you end up is one that’s drafted properly, executed properly and enforceable in the courts.

Electronic signatures are something that were gaining in popularity and frequency of use even before the pandemic struck. Before anyone had ever heard the phrase “COVID-19,” Florida had adopted its version of the Uniform Electronic Transactions Act. Fla. Stat. Section 668.50(7)(a) says that a signature “may not be denied legal effect or enforceability” strictly because it is an electronic one, and Subsection (b) says that just “because an electronic record was used in the formation of the contract,” that alone is not a sufficient basis to make the contract unenforceable.

In Florida, a valid electronic signature can be “an electronic sound,” a symbol, or a process “logically associated with a record” and inserted “with the intent to sign the record.” Electronic signature technology can allow signors to create an electronic version of their signature using their finger or a stencil on a touchscreen, or to sign with a prefabricated signature font created by the electronic platform. Either version potentially can be a valid electronic signature.

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Third-party beneficiary breach cases may occur from time to time in the course of your business, whether you are one of the actual parties to the underlying commercial contract, or your business is the third-party beneficiary.

A recent case from Miami is a very useful reminder that the law in Florida establishes some specific requirements in order for an alleged third-party to proceed with a breach of contract claim. If you are in the position of the third party, it is exceptionally important to be sure you have the right allegations in your court papers to cover all of the mandatory elements. If you are a defendant, your business may be able to use a shortcoming in one or more of these essential areas to get the case dismissed. Either way, it pays to have a South Florida commercial litigation attorney on your side who is experienced in these kinds of cases.

That recent Miami case involved a high-end vacation rental business that alleged that it was a third-party beneficiary to a contract, that a breach of that contract had occurred and that the breach has caused it to suffer damages.
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Many business people have a reasonable idea of what the word “jurisdiction” means generally. If you look it up on Google, that site says it’s “the official power to make legal decisions and judgments.” That’s a pretty fair overview-type description. The details of jurisdiction, and its impact on your business and business litigation actions, go much deeper, however. For in-depth knowledge of this area of the law, you need the skill of an experienced South Florida commercial litigation attorney, who can use the law to help you keep your case where you want it and avoid having to litigate in someplace where you don’t.

Recently, jurisdiction was the key to the resolution of a commercial litigation appeal between an international agricultural company and a Venezuelan cargo airline. The airline sought to litigate a multi-million dollar commercial contract dispute in state court in Miami.

The agricultural company was based in Dubai, its parent company was headquartered in India and even its U.S. subsidiary (which wasn’t part of this case) was based in Texas. Clearly, litigating a breach of contract action in Florida might be disadvantageous for the agricultural company. It might mean retaining additional attorneys, in addition to other expenses related to extensive travel and lost productivity elsewhere. So, what can you do if another company has tried to pull you into litigation in a far-flung place?

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In the creation of any commercial contract, there are certain goals you want to accomplish. What is true in most all commercial contracts is that you want an agreement that is completely clear, and where your rights and obligations are unambiguously laid out in “black and white.” Even after you’ve done that, though, you may still have to fight to get the benefit of the bargain that you negotiated and signed. When that happens, be sure to reach out an experienced South Florida commercial litigation attorney about the specifics of your situation.

Why does having a clear and unmistakable agreement matter so much? One reason is that having a contract that is devoid of any vagueness or ambiguity may alter the landscape of your litigation in your favor should your contract partner sue you for breach. As an example, consider the case between a multinational hospitality corporation and an entity that provided corporate registered agent services along with document retrieval and delivery services.

Reportedly, the contract between the two sides said that either one could terminate the contract, with or without cause, without liability, and could do so at any point during the initial term or during any renewal term, as long the canceling party provided written notice within a certain timeframe. The contract’s initial duration was seven years.

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Arbitration clauses can be very important parts of commercial contracts. As with any contract clause, one of the keys is understanding exactly what situations the clause covers and what situations it doesn’t. Florida law says that “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.” In other words, there must be a clearly enforceable arbitration clause and it must clearly cover the dispute at issue, or else there is no right to seek compulsory arbitration. Without question, whether you are seeking to enforce an arbitration clause or seeking bypass it and proceed in court, it pays to have the skill and knowledge of an experienced South Florida commercial litigation attorney on your side.

A dispute over the construction of an apartment complex was a good example of how this analysis works. In late 2006, a Tennessee-based construction firm inked a deal to construct an apartment complex for seniors in Titusville. The agreement was spelled out across two documents – a primary contract and a supplemental conditions document.

Not happy with the construction work, the complex sued the construction firm for breach of contract. The construction firm asked the court to dismiss or stay the litigation action. According to the construction firm, the agreement called for alternative dispute resolution of claims like the one lodged by the complex. Specifically, the agreement required that the parties mediate and, if that failed, undergo arbitration of the claims.

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The ever-increasing threat of the coronavirus (COVID-19) pandemic has driven consumers into a frenzy over common sanitation and disinfecting products, in addition to gloves, masks, and other personal protective equipment. As a result, businesses that offer such products could see the increasing demand as an opportunity to augment their profit margins by charging higher prices. However, it is imperative that these businesses be fully informed of the consequences and liability that could result from this type of conduct, otherwise known as price gouging. Each state regulates price gouging differently, so businesses should be aware of the price gouging laws for each state in which they do business. This article will discuss in detail price gouging in the State of Florida.

On March 9, 2020, Florida Governor Ron DeSantis declared a state of emergency due to the spread of the coronavirus, triggering Florida’s Price Gouging Law, Section 501.160, Florida Statutes. According to Florida’s First District Court of Appeal, the Price Gouging Law was passed to prevent dramatic increases in the prices of certain essential commodities during certain periods of disaster. The Law prohibits unconscionable price increases, which it defines as a “gross disparity” between the average cost of the commodity 30 days prior to a declared state of emergency and the current price of the commodity. However, the Law exempts price increases attributable to “additional costs or regional, national or international market trends.” The essential commodities covered under Florida’s Price Gouging Law are constantly changing, so companies doing business in Florida must stay apprised of any modifications that could potentially affect their operations. At this time, the essential commodities covered under Florida’s Price Gouging Law are the following:

•Protective masks used to protect you from others if you are sick;

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The COVID-19 pandemic has affected almost all business sectors in South Florida. Commercial rental property is no exception. The shutdown of non-essential businesses in Miami-Dade and Broward Counties has left many commercial tenants severely restricted or completely unable to generate revenue. The current circumstances have also placed great financial pressures on commercial landlords, as well. For tenants and landlords facing major issues, there may be alternatives to eviction. These may include things like workouts or lease restructuring, among other possibilities. To discuss your options and what makes the most business sense for you, be sure you are working with an experienced South Florida commercial real estate attorney.

As therealdeal.com reported, several South Florida commercial landlords are working with their tenants to keep those tenants out of the eviction process and in the spaces they currently occupy. Two South Florida-based landlords offered their tenants options including rent deferments, rent forbearances and partial rent payments, according to the report.

Landlords have several options if they have tenants impacted by COVID-19-related restrictions that are having difficulties paying rent. A landlord may declare a tenant in default and immediately begin pursuing legal action against the tenant and any guarantors, the landlord can declare a tenant in default but hold off on taking any enforcement action or the landlord can negotiate an amendment to the tenant’s lease.

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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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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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