Articles Posted in Commercial and Business

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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 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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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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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.)

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Whether you are an employee signing a new employment agreement or you are a business entering into a new commercial contract, there are certain areas of your contract where it is particularly important to pay extra close attention to the “fine print.” One of these is the arbitration clause that may exist in your agreement. When it comes to negotiating – and later enforcing – these and other elements of your commercial contract, you’ll want to rely on representation from an experienced South Florida litigation attorney.

As an example of how a well-worded arbitration clause can work to protect your interests, look at this case from the Tampa area. A local aviation authority awarded a contract to a Texas construction firm for the building of a rental car facility. The contractor hired an Orlando firm to serve as one of its subcontractors. The agreement between those two entities stated, in part, that certain disputes “shall be resolved by arbitration pursuant to the Construction Industry Rules of the American Arbitration Association then prevailing.”

Eventually, there was a dispute. The subcontractor sued the contractor for breach of contract, alleging that the aviation authority paid the contractor, but that the contractor did not pay the subcontractor what it was owed. The contractor sought to compel arbitration, but the trial court ruled for the subcontractor.

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