Practice Makes Perfect

“I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five.”

-Steven Wright

The legal system is made up primarily of rules, statutes, and mountains of cases that interpret those rules and statutes. It can be very frustrating because different judges can read the exact same types of cases that have identical sets of facts, but justify their decisions based on their own beliefs as to what an outcome should be. This is why lawyers and clients are often left scratching their heads in confusion as they walk out of the courtroom.  

There are rules as far as the eyes can see. There are rules about state civil procedures, rules about clerk of court procedures, rules that individual judges use for handling cases, scheduling rules, rules for filing documents, and so on to infinity. Again, the level of information that has to be learned, often the hard way through mistakes, completely boggles the mind. 

This is why individuals so often become justifiably frustrated with the legal system (and distrustful of lawyers) because the abundance of rules, conflicting cases, and procedures make it virtually impossible for the average person to have any understanding as to what is actually happening with their case.  

On top of everything else, there are time deadlines for everything that are the equivalent of secretly placed land mines just waiting to blow people up. Many of these land mines can be fatal to a case. While there are numerous rules and procedures that exist, I have found that the following matters seem to constantly reoccur:

Corporations

Corporations cannot represent themselves in Florida. For some reason, this legal concept is often lost upon both lawyers and corporate owners.  If a corporation is sued, with the exception of professional associations and Small Claims cases, it cannot represent itself. A warning---all corporations, get yourself an attorney as soon as possible after you receive a summons indicating that you have been sued.

Ex-Parte Communications With Judge

An ex-parte communication occurs when a party to a case, or someone involved with a party, talks or otherwise has communications with the judge about the issues in the case without the other parties’ knowledge. Those representing themselves seem to violate this rule very often because they are not aware of the protocol dealing with judges. The correct way to communicate with a judge regarding an issue is to file a written motion with the clerk of the court in which your case is filed explaining what relief you are seeking and why you are entitled to that relief. Thereafter, you must schedule a hearing with the judge’s office. Judge’s often have different procedures for scheduling, so it may be helpful to call the judge’s office first. You must send a copy of your motion to every other party in your case. The following are basic rules that should always be followed concerning communications with a judge:

1. A party should avoid ex-parte communication on the substance of a pending case with a judge before whom the case is pending.
2. Before making an ex-parte application or communication to the court, a party should make diligent efforts to notify the opposing party or a lawyer known or likely to represent the opposing party and to accommodate the schedule of that lawyer to permit the opposing party to be represented in court. A party should make an ex-parte application or communication (including an application to shorten an otherwise applicable time period) only when there is a bona fide emergency that will result in serious prejudice to the party if the application or communication is made on a regular motion.
3. Parties should always notify opposing counsel of all oral or written communications with the court.

If an attorney or opposing party makes an ex-parte communication with the judge that is prejudicial to the other party, a motion should immediately be filed stating the objection to the ex-parte communication with the judge. This written objection may be very important in the event that an appeal is filed later (to preserve your objection).

Avoiding Clerk Defaults

This is another rule of civil procedure that is often violated by both those representing themselves and hyper-aggressive attorneys. Simply put, if a party is sued and files or “serves any paper” in response to a lawsuit (such as a letter regarding the lawsuit), the party who filed the lawsuit must file a motion and seek a court order granting a default, with a notice of the motion to the party who was sued. 

At any time that a motion for default is set for hearing before a judge, prior to a hearing on the motion for default, the sued party may file an answer and avoid entry of a default against them. This rule is especially important because if a party who is sued fails to serve or file any response to a lawsuit, a clerk may enter a default against the sued party without a hearing. 

This may later lead to a judge entering a final judgment of default against a defending party and lots of time, aggravation, and money attempting to set aside the default. Thus, if you are ever sued, immediately have your attorney file a timely response, or make sure that you send a written communication (via a method that you can prove you sent the document) so that you avoid entry of a clerk default. 

It is also a very good idea to file the written communication with the clerk of court so that you are covered both ways, with a written communication to the opposing attorney, and a document filed with the clerk identifying that you intend to defend against the lawsuit. 

Make Sure and Have a Court Reporter

One of the crucial mistakes that I have seen both as a trial and appellate attorney, is the mistake of a person not having a court reporter present during proceedings that take place in court. Even though paying to have a court reporter present at a hearing or trial can be expensive, the ability of an appellate court to review the decision of a trial court is limited to the “record” of the proceedings that occurred at the trial court level. 

The record, in a simplistic fashion, consists of all of the documents filed in a case, as well as copies of all transcripts of hearings and trials.

Failure to supply an adequate record leaves an appellate court with no alternative but to affirm a judgment, unless the error is so egregious that it can be determined by simply reading the final judgment (e.g. The final judgment indicates that the trial court applied the wrong legal test in reaching its decision.)

If the appellate court does not have a copy of the documents filed, evidence presented, and legal arguments made at the trial level, it us unable to determine what the trial court did incorrectly, if anything.   

Thus, if a hearing is important enough to attend, then it is important enough to bring a court reporter. There are certain rare circumstances where bringing a court reporter may not be a good tactical decision, but these often complex circumstances are better left to the instruction of a lawyer who should have a better understanding of the strategy needed for your particular case.

 While the above seem to be simple concepts, these matters are repeatedly misapplied by both attorneys and persons representing themselves. As always, the above information consists of basic summaries of common issues that arise in litigation.  If you are involved in a lawsuit in any manner, as always, your best option is to immediately hire an attorney to represent you---as misapplied rules and time limits can be damaging or even fatal to a case.  

 -Leonardo G. Renaud

FLORIDA DIVORCE TRENDS ON TIME-SHARING AND SUPPORT

"Divorce is the one human tragedy that reduces everything to cash."

-Rita Mae Brown

I am writing this post because I so often overhear the following discussed by those involved in a divorce, or those thinking about filing for divorce.

                “I am getting divorced.”

“Wow, I am shocked and sorry to hear that. I always thought that you were so happy.”

“What is going to happen with the children?”

“I’m not worried because my friends all tell me that, in Florida, the judges are in favor of giving custody to their mom.”

“If my husband wants, he can ask for visitation, but I am sure he is not going to get much because he hardly knows how to take care of the children.”

 

Simply put, this is not an accurate statement. Florida no longer has the concept of custody or visitation. Now, the allocation of time spent with the children is called “time-sharing.” Theoretically, this was supposed to take out the negative connotations associated with “custody” and “visitation” in divorce cases, but in reality----as many family law lawyers will agree---it is really only a change in semantics and has not reduced parents from fighting about anything.

 

What has happened since the change to the concept of time-sharing, is that parents now bitterly fight about how much support a parent has to pay, and how that amount is impacted by the amount of time-sharing they get with their children. In fact, it is this writer’s opinion, that the time-sharing legislative “idea” has caused parents, who would ordinarily agree to a reasonable time to spend with their kids, to now aggressively fight for as much time-sharing as they can (regardless of whether this is good for their children or even feasible), so that they can try to pay less child support.

 
Different name, but the same old result.
 
With regard to the mother’s claim above that a judge will give her request for time-sharing more weight; at one time, Florida applied what was known as the “tender years doctrine.” This was based on an old belief that only a mother could properly care for the children.  This doctrine no longer exists in Florida.
 

Currently the way the law is applied, is that the court “shall” order that parental responsibility for a minor child be shared by both parents, unless the court finds that shared parental responsibility would be detrimental to the child.

At Section 61.13 of the Florida Statutes, the legislature has attempted to explain its application of time-sharing in the following manner:

“It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.”

 

The standard of how time-sharing is allocated is dependent on the “best interests of the child.” The determination of what the best interest of the child is consists of the court evaluating all of the factors affecting the welfare and interests of a child, including, but not limited to:

(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child's friends, teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge  in writing that such evidence was considered when evaluating the best interests of the child.

(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

 

As outlined above, a mother involved in a divorce, or thinking about a divorce should not assume that a judge is going to give her preferential treatment when the determination of time-sharing or sole parental responsibility is decided.  The standard is “What is the best interest of the child?” It is each spouse’s equal burden to provide sufficient evidence to the court that they should be the person with the most time-sharing and whether they should have sole parental responsibility.

Withholding Time-Sharing or Support

Another conversation that I often hear goes as follows:

 

       “My husband has not paid me child support or alimony in months.”

       “So, what are you going to do about it?” “That seems really unfair!”

       “I’m going to teach that deadbeat  a lesson!”

        “He is not going to spend one minute with the children until he pays up.”

 

This is another mistake that persons often make. Although it feels unfair on a moral level, a parent who is not receiving support cannot withhold time-sharing from a non-paying spouse. The parent withholding time-sharing could be sanctioned by the court. In fact, if a divorce is pending, a court can consider withholding of time-sharing against the party who withholds it. The correct, albeit difficult, step to take is to immediately seek relief from the court to receive support, but do not withhold time-sharing.

 

The rationale behind this approach to time-sharing is that Florida law is focused on what is the best interest of the child, not what either parent claims to deserve. It is in the best interest of the child, according to the Florida legislature, that children spend time with both their parents---even if one of the parents is not cooperating with financial assistance.

Florida law is very clear about this issue:
 

“When a parent who is ordered to pay child support or alimony fails to pay child support or alimony, the parent who should have received the child support or alimony may not refuse to honor the time-sharing schedule presently in effect between the parents.”

On the other side of the argument, the following statements are often made:

       “I am up to date on all my support payments, and my wife is not letting me see the kids.”

      “She thinks the kids belong to her, and always has an excuse to keep me from seeing them.”

       “I am going to show her. I am not going to pay her a dime, besides she is probably just using all the money I pay her to pay for her own things, and not to take care of the children.”

 

Again, slam your brakes before you withhold your support. If what is described above is happening to you, and you are being denied time-sharing, the correct course of action is to again immediately seek relief from the court.  Withholding the payment of any court ordered support is not allowed by the Florida statutes as stated below:

“When a parent refuses to honor the other parent's rights under the time-sharing schedule, the parent whose time-sharing rights were violated shall continue to pay any ordered child support or alimony.”

Remember, that the child’s best interest is paramount regardless of how uncooperative a parent may be with time-sharing.  The way these matters should be handled is to immediately request relief from the court. Failure to pay child support, or withholding of time-sharing, are all acts that use a child as a weapon against the other parent, and commonly result in sanctions by the court.

It is important to remember that anger and bitterness do not override the best interest of a child in a divorce case. Failing to pay child support or withholding time-sharing are considered a very serious violation of a child’s rights.

The information herein is only a basic summary of Florida law.  I urge all readers involved in divorce proceedings to immediately retain a lawyer to discuss all legal issues pertinent to the case, as well as the obligations pursuant to Section 61.13 of the Florida Statutes.

-Leonardo G. Renaud

Florida Gun Laws; No Time to Misfire

”You cannot invade the mainland United States. There would be a rifle behind each blade of grass.”
~Admiral Isoroku Yamamoto

The following post is a result of numerous questions I have received from readers regarding the status of Florida gun laws.

With all of the mass shootings that have occurred lately by violent and mentally unstable individuals and the massive media and political attention that these unfortunate events have attracted, there are many people who have decided to purchase guns in 2013.

Whether persons should be allowed to carry a concealed weapon, should be able to purchase a certain type of weapon, or certain weapon enhancing equipment, is a debate for a different forum.  It is not my intent to try and persuade or espouse any position regarding gun ownership.

The Stand Your Ground Law

To summarize, a person has the right to use “deadly force and does not have to retreat” if that person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or to prevent the imminent commission of a forcible felony.

The definition of a “forcible felony” is located at Section 776.08 of the Florida Statutes---but generally includes such acts as: murder; manslaughter; sexual battery; carjacking; aggravated assault and battery; home-invasion; burglary, kidnapping, aggravated stalking, etc.

A person also has the right to use deadly force to protect others if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. Under these circumstances, a person also does not have a duty to retreat, if the person is in a place where he or she has a right to be.

Neither of the defenses above applies if the defensive shooter is engaged in an unlawful activity or is in a place where they have no right to be at the time of the use of deadly force. For example, if a person is stealing a car from a person’s house, they do not have the defense of the “stand your ground” law.

Review Section 776.031 of the Florida Statutes for additional information regarding your protection and the protection of others.

Gun Ownership

I believe in the summary method of discussing legal issues.  This helps a potential gun purchaser or owner to get the basics. Thereafter, if the owner or potential owner desires to follow up with the specifics of a particular subject area, they can do additional research by reviewing Chapter 790 of the Florida Statues.

The basics of the Florida gun laws covered within the scope of this post are as follows:

Rifles and Shotguns

• Permit to purchase rifles and shotguns? No

• Registration of rifles and shotguns? No

• Licensing of owners of rifles and shotguns? No

• Permit to carry rifles and shotguns? No

Handguns

• Permit to purchase handgun? No

• Registration of handguns? No

• Licensing of owners of handguns? No

• Permit to carry handguns? Yes

Purchase and Possession:

No state permit is required to possess or purchase a rifle, shotgun or handgun.

It is unlawful for:

• Any convicted felon to have in his or her possession any firearm or to carry a concealed weapon unless his civil rights have been restored.

• The following persons to own, possess or use any firearm - drug addicts, alcoholics, mental incompetents, and vagrants.

• For persons to have in their care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence.

• To sell, give, barter, lend or transfer a firearm or other weapon other than an ordinary pocketknife to a minor less than the age of 18 without his parent’s permission, or to any person of unsound mind.

• Any dealer to sell or transfer any firearm, pistol, Springfield rifle or other repeating rifle to a minor.

• A minor less than 18 years of age to possess a firearm, other than an unloaded firearm at his home, unless engaged in lawful activities.

Additional Points Regarding Application for a Firearm:

No licensed gun dealer, manufacturer or importer shall sell or deliver any firearm to another person until he has obtained a completed form from the potential buyer or transferee and received approval from the Department of Law Enforcement by means of a toll-free telephone call.

The Department of Law Enforcement shall destroy records of approval and non-approval within 48 hours after its response.

Exempt from the instant check are licensed dealers, manufacturers, importers, collectors, persons with a concealed carrying license, law enforcement, correctional and correctional probation officers.

Excluding weekends and legal holidays, there is a three-day waiting period to purchase a handgun from a retail establishment. Exempt from the waiting period are concealed weapons permit holders and those trading in another handgun.

Carrying

Unless covered under the exceptions, it is unlawful to openly carry on or about the person any firearm, or to carry a concealed firearm on or about the person without a license.

Exceptions:

• Persons having firearms at their home or place of business.

• Enrolled members of clubs organized for target, skeet, or trapshooting, while at, or going to or from shooting practice.

• Members of clubs organized for collecting antique or modern firearms while at or going to or from exhibitions.

• Persons engaged in fishing, camping or hunting and while going to or from such activity.

• Persons engaged in target shooting under safe conditions and in a safe place or while going to or from such place.

• Persons who are firing weapons for target practice in a safe and secure indoor range.

• Persons traveling by private conveyance if the weapon is securely encased, or in a public conveyance if the weapon is securely encased and not in the person’s manual possession.

• Persons carrying a pistol unloaded and in a secure wrapper from place of purchase to their home or to a place of repair and back.

• Persons engaged in the business of manufacturing, repairing or dealing in firearms.

• Military, law enforcement personnel and private guards while so employed.
 

The Department of Agriculture Shall Issue a License if the Applicant:

• Is at least 21 and a U.S. resident.

• Does not suffer from a physical or mental infirmity which prevents the safe handling of a firearm.

• Is not a convicted felon.

• Has not within a three-year period preceding submission of the application been convicted of a crime of violence or committed for drug abuse or been convicted of a minor drug offense.

• Has not been adjudicated guilty even with a suspended sentence for a felony or misdemeanor crime of domestic violence, unless three years has elapsed since probation or the record is sealed or expunged.

• Is not a chronic or habitual drunkard.

• Is not currently under any injunction restraining the applicant from acts of domestic violence or repeated acts of violence.

• States that he desires a legal means to carry a concealed weapon or firearm for lawful self-defense.

Additional Points Regarding a Concealed Firearm:

It is lawful to possess a concealed firearm for self-defense or other lawful purposes within the interior of a private conveyance, without a license, if the firearm is securely encased or is otherwise not readily accessible for immediate use.

A firearm other than a handgun may be carried anywhere in a private conveyance when such firearm is being carried for a lawful use.

This exemption does not authorize the carrying of a firearm concealed on the person.

An application for a license to carry a handgun concealed is made to the Department of Agriculture. The license is valid for five years and is honored throughout the state. The application shall be completed, under oath, on a form promulgated by the Department of Agriculture and shall include the applicant's name, address, place and date of birth, race, and occupation.

In conclusion, if you are a gun owner, or intend to purchase a gun, I strongly recommend that you review the applicable laws to avoid problems. As always, it is important to note, that laws are in a constant state of change. With the current media and political debates concerning gun laws, I highly recommend that all gun owners, and potential gun owners stay as current as possible with gun laws.

(Some excerpts above are from the NRAILA)

-Leonardo G. Renaud

 

Non-compete agreements; the mystical urban legend

The scars of others should teach us caution. –St. Jerome

As this is a new year filled with resolutions and new hopes, many people are leaving jobs that they dislike, or do not pay them enough.

During my time practicing law, I have had many of the following types of conversations with people:

“Guess what,” “I got hired for a new job.”  “I am going to be working sales, and my territory is Miami-Dade County, Broward County, and Palm Beach County.” “I am really excited because with this amount of territory and customers, I am really going to make some great sales and a lot of money.”

I say something like, “That sounds great, did they make you sign some sort of contract?”

They say, “Yes, I signed a non-compete agreement, but those aren’t enforceable in Florida right?” “I asked my friends in sales and other business, and they all said that non-compete agreements are unenforceable because I have a right to work.” “They can’t keep me from taking care of my family right?”

At this point, my eyes roll back, and I shake my head---as the urban legend of the unenforceable non-compete agreement has reared its ugly head once again.

Please repeat after me, “Non-compete agreements, with some exceptions, are enforceable in Florida.” Where the urban legend of the unenforceability of non-compete agreements comes from, I have no idea, but it is alive and still kicking people really hard.

Section 542.335 of the Florida Statutes contains the elements and framework required for an enforceable non-compete agreement. Like many legal statutes, it can be very confusing for non-lawyers (and lawyers) to understand. There are so many sections, definitions, and subsections, that a person gets lost in a maze trying to figure what they should or should not sign.

In a simplified fashion, the major factors to consider in evaluating whether a non-compete agreement is enforceable, are as follows:

1) Whether the agreement protects a “legitimate business interest?” These can include such things as trade secrets, confidential business information, substantial relationships with prospective or existing customers, goodwill associated with a trademark, geographic location, specific marketing location, and specialized training. A legitimate business interest is an asset that if given to a competing business, would give the new owner of the asset an unfair business advantage;

2) Whether the duration of the agreement is reasonable for a former employee, agent or independent contractor? A duration of six months or less is considered to be presumptively reasonable. A duration of more than two years is considered to be presumptively unreasonable;

3) Whether the geographic scope of the agreement is reasonable? Unfortunately, there is not any language in Section 542.335 defining what a proper geographic limitation is; however, a general rule of thumb is that a court may not be likely to enforce a non-compete agreement for an area where an enforcing party does not do any business;

4)Whether the enforcing party no longer continues in business in the area or line of business that is the subject of the lawsuit to enforce a non-compete agreement? The court may consider this factor as a defense. It must be noted, however; that the court will not consider any individual economic hardship that may be caused to the person against whom enforcement is sought;

5)Whether a court can enter a temporary or permanent injunction enforcing a non-compete agreement? The violation of a non-compete agreement creates a presumption of irreparable injury; thus, a court will enforce a non-compete agreement by any appropriate remedy. An “appropriate remedy” may include a temporary or permanent injunction.

As is always the case, different sets of facts and circumstances may alter a court’s decision regarding the enforceability of a non-compete agreement and what reasonable measure of protection, if any, the court may decide is needed.

I strongly urge all individuals to review employment contract agreements with their lawyer before signing them.  On the flip side, if you are a business owner and want to protect your interests, you should review Section 542.335 (and those cases that have interpreted this statute) with your lawyer before attempting to prepare a non-compete agreement that has a good chance of being found enforceable by a court.

It is my hope that the urban legend of the “unenforceable non-compete agreement” be put to rest.  I unfortunately have seen too many people find out the hard way, after they happily move on to a new job, that they are severely limited because they signed a non-compete agreement.

-Leonard G. Renaud

Why am I writing this blog?

Throughout my experience as an attorney, I have litigated many contract and other legal issues that could have been avoided if one or both of the parties was better informed before making important decisions. I am repeatedly asked questions about the same legal issues, and hear so many “urban legends” about “theories” of law, that I am compelled to provide a bit of general information about legal questions that arise time and time again. It is my hope that by reading this blog, an individual or business owner will learn some basic legal principles that save them trouble, time, and expense in the future. 

 

-Leonardo G. Renaud