Archive for June, 2011

Mom Hires Hit Man Over Facebook

Ethan Wall | June 30, 2011 in Social Media Law & Order | Comments (0)

After a bitter fight with her child’s father, a woman offered $1,000 on her Facebook wall to anyone who would murder her ex-boyfriend, PoliceLink reports. Even more remarkable, her offer was accepted on her Facebook wall shortly thereafter.

Police said the plot was hatched in late May, when [London] Eley got into an argument with ex-boyfriend Corey White of West Philadelphia and posted to her Facebook wall: “I will pay somebody a stack to kill my baby father.” “Stack” is slang for $1,000.

*      *      *

When several people commented, one asking if she was sure she wanted White dead and not just hurt, police said she posted, “DEAD! HATE HIM.”

Next, police said, [Timothy] Bynum responded with “say nomore wat he look like nd where he be at.” After Eley gave a description and information about where White was, Bynum indicated that he needed to be paid first.

While the hit was never carried out, police believe the plot was more than just idle talk. When officers arrested Bynum, they found a loaded .22 caliber handgun in his apartment, with the serial number partially obliterated. Police also found the following photographs of Bynum yielding a gun on his Facebook page.

Bynum is charged with attempted murder, conspiracy, and related offenses. Eley was arrested Friday and charged with conspiracy to commit murder.

Out of the Frying Pan and Into the Fire: Should Attorneys Insert Arbitration Clauses Into their Engagement Agreements?

Manuel Farach | June 29, 2011 in Real Estate & Business Litigation Record | Comments (0)

Johnson, Pope, Bokor, Ruppel & Burns, LLP v. Forier, — So.3d —-, 2011 WL 2341391 (Fla. 2d DCA 2011).

In a case of first impression in Florida, the Second District Court of Appeal has ruled that attorneys may draft engagement agreements that require legal malpractice claims be brought in arbitration as opposed to litigation. The decision was straightforward, but still leaves some questions unanswered. First, a review of the decision.

Judge Black wrote the opinion for the court and succinctly stated the three points on which the decision turned: no Florida courts have held such provisions to be against public policy, there is no constitutional prohibition on such provisions, and any possible violations of the ethical rules regarding the use of such provisions do not prohibit arbitration of the dispute (i.e., any purported ethical deficiencies that affect the standard of care can be decided as part of the malpractice claim in the arbitration). Specifically, the court ruled:

We are not aware of any Florida cases holding that it is against public policy for an attorney to include a clause in a legal services contract requiring arbitration of legal malpractice disputes. We are also not aware of any constitutional or statutory provisions prohibiting these agreements on public policy grounds. Although Mr. Forier argues that we should affirm the trial court’s decision because Mr. Larson breached his ethical duties to provide full disclosure, give candid advice, and avoid conflict when he submitted the arbitration clause to Mr. Forier without first explaining the waiver of rights or recommending review by independent counsel, we do not agree. While there are arguably ethical issues that arise in this type of contract, there is currently no Florida Bar Rule which prohibits this sort of agreement.

Johnson, Pope at 2011 WL 2341391, p. 3.

So what issues are left to decide? The nagging ethical issue, of course, and the practical problem of whether arbitration is better or worse than litigation for a lawyer. First, let’s look at the ethical issue.

The Florida Bar actually considered implementing a rule permitting attorney disputes be decided by arbitration; Professional Ethics Committee Proposed Opinion 02-9 stated that a mandatory arbitration provision was ethically permissible so long as the arbitration clause was fair and reasonable, was not so broad that it could be interpreted to mean that disciplinary matters were subject to arbitration, the clause had to be disclosed to the client and the client had to be specifically advised it was waiving a jury trial, the client could consult with other counsel (but did not need to be represented by independent counsel in the agreement), and the consent had to be in writing. However, the Proposed Opinion was withdrawn by The Florida Bar’s Board of Governors. See Brian Spector, Predispute Agreements to Arbitrate Legal Malpractice Claims: Skating on Thin Ice in Florida’s Ethical Twilight Zone?, 82 Fla. B.J. 50, 50 (2008). So although it is not a rule, Proposed Opinion 02-9 gives some form of roadmap for an attorney to follow if she is considering implementing such a clause. So what’s left to consider? Perhaps the most difficult item: the practical aspects of whether an attorney actually wants to implement such a provision.

Professionals in SRO (self-regulatory organizations) environments who actions are judged by arbitrators have long complained that arbitrators from that industry are tougher on the professionals than public (non-industry) arbitrators. Attorneys considering implementing an arbitration clause should consider whether attorney arbitrators, who are learned in the law and keen to make sure their profession is highly regarded by the public, would be tougher on an attorney in an arbitration forum than a jury in litigation might be. This is obviously an outcome that is almost impossible to predict, but the type of practice an attorney has (complex securities, for example) may dictate whether the attorney is more comfortable with an arbitration panel than a jury deciding whether the attorney committed malpractice.

So the Johnson, Pope decision is good news on one front, but as sometimes happens, begs as many questions as it answers. And an attorney considering implementing an arbitration provision should carefully consider all the issues before jumping into the fire.

Recipe for Effective Professional Twitter Marketing

Ethan Wall | June 28, 2011 in Social Media Law & Order | Comments (0)

You know that guy or gal who is all too happy to meet you at a networking cocktail hour? You know the one, within seconds of meeting you they’re telling you all about their business, handing you their card, and asking when you can do lunch.  This type of “in your face” interaction is not an effective marketing strategy in person, and is equally ineffective (and annoying) online. Might you or someone you know be one of these networkers? Never fear, a solution is here.
Nicole Black and Carolyn Elefant, authors of Social Media for Lawyers: The Next Frontier, offer their 50/30/10/10 rule for effective networking through Twitter.  The “rule” serves as a nice guideline of how to use social media as a professional tool with a personal spin, without being too much of “in your face” advertiser.
  • Nicole Black’s: 50-30-10-10 Twitter Rule (for your content):
    o 50% should Provide Llinks, articles, other blog content, and ”retweets” of interest
    o 30% should Reply to other users (interaction)
    o 10% of Self-promotion, including firm accomplishments, and links to your blog
    o 10% of Personal Stuff about your personal interests

Applying these guidelines presents an effective mix of sharing professional information your followers will enjoy, with an appropriate amount of commentary about your practice, accomplishments, and personal life. And don’t be afraid to put your personal spin in your online networking.  Remember, clients hire professionals they know, like, and trust.  It’s totally acceptable to use social media as a professional networking tool while interspersing personal tid-bits about yourself.  I’ve applied this rule on Twitter, and can vouch for its results. And hopefully, you don’t consider me an “in your face” marketer!

Case Law Update for June 25, 2011

Manuel Farach | June 26, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume IV, Issue 26

June 25, 2011

Manuel Farach

Edward T. Byrd & Co., Inc. v. WPSC Venture I, — So.3d —-, 2011 WL 2493656 (Fla. 5th DCA 2011).

A guarantor under a loan is a “borrower” for purpose of the Mortgage Brokerage Act, Fla. Stat. § 494.001 (“Act”),  and pursuant to the Act, a mortgage broker who fails to obtain the signature of a guarantor on a mortgage brokerage contract may not collect their commission for obtaining a mortgage loan for the borrower.

Lion Gables Realty Ltd. v. Randall Mechanical, Inc., — So.3d —-, 2011 WL 2493660 (Fla. 5th DCA 2011).

An intended third party beneficiary of a contract may enforce the arbitration clause of a contract, and it is the trial court (not the arbitration panel) that determines whether a party is an intended third party beneficiary. Furthermore, the Fifth District holds that a party who participates in merits discovery waives the right to arbitrate.

Cellco Partnership v. Kimbler, — So.3d —-, 2011 WL 2496680 (Fla. 2d DCA 2011).

In order for a restrictive covenant to apply to future affiliates or merged companies of the protected party, the agreement containing the restrictive covenant must state that it will apply to third party beneficiaries, assignees or successors in interest to the protected party.

Bacon & Bacon Mfg. Co., Inc. v. Bonsey Partners, — So.3d —-, 2011 WL 2496687 (Fla. 2d DCA 2011).

The burden of proof for establishing fraud is greater weight of the evidence; not clear and convincing.

Getman v. Tracey Const., Inc., — So.3d —-, 2011 WL 2507056 (Fla. 2d DCA 2011).

Summary judgment must be based on movant’s demonstration of no material issues of fact, not on non-movant’s failure to file affidavits or offer proof in opposition to summary judgment.

Valencia v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2011 WL 2462673 (Fla. 4th DCA 2011).

A discrepancy between a complaint and “notice to cure” letters creates a triable issue that precludes summary judgment.

Bright v. Baltzell, — So.3d —-, 2011 WL 2462760 (Fla. 4th DCA 2011).

Fees under Fla. Stat. § 768.79 may only be awarded upon a voluntary dismissal when the dismissal is with prejudice or the party plaintiff has once previously dismissed. A personal representative is not a “plaintiff” for purposes of the statute, and an “administrative closing” of a case is not a dismissal for purposes of the statute.

Lynn v. Sakharoff, — So.3d —-, 2011 WL 2462791 (Fla. 4th DCA 2011).

If requested and not withdrawn or waived, a jury trial is necessary on unliquidated damages even after a default.

Tribeca Aesthetic Medical Solutions, LLC v. Edge Pilates Corp., — So.3d —-, 2011 WL 2462832 (Fla. 4th DCA 2011).

Notwithstanding a lease provision that permits the a landlord to collect rent directly from a subtenant, the Fourth District follows First States Investors 3300, LLC v. Pheil, 52 So. 3d 845 (Fla. 2d DCA 2011), and holds that a landlord cannot withdraw money deposited into the Registry of the Court under Fla. Stat. § 83.232 (1) until the dispute over the rent is determined.

Rabie Cortez v. Palace Holdings, S.A. de C.V., — So.3d —-, 2011 WL 2499428 (Fla. 3d DCA 2011).

The standard of review of an order granting a motion to dismiss based on forum non conveniens is generally abuse of discretion.

JPmorgan Chase Bank, N.A. v. Hernandez, — So.3d —-, 2011 WL 2499641 (Fla. 3d DCA 2011).

A purported “tender” of payment of a foreclosure judgment and simultaneous creation of an apparently fictitious “Unilateral Note” purporting the make the lender a “borrower” under the Unilateral Note not supported by record nor facts, and sanctions imposed on borrower and their counsel.

Diaz, Reus & Targ, LLP v. Bird Wingate, LLC II, — So.3d —-, 2011 WL 2500990 (Fla. 3d DCA 2011).

The power to correct a clerical error in a Notice of Voluntary Dismissal lies in Florida Rule of Civil Procedure 1.540 (b), i.e. a court can permit an attorney to withdraw a Notice of Voluntary Dismissal with Prejudice upon a proper factual showing the dismissal was intended to be without prejudice.

Duval Motors Co. v. Rogers, — So.3d —-, 2011 WL 2449474 (Fla. 1st DCA 2011).

A merger and integration clause in a fully integrated agreement excludes not only pre-contract negotiation and statements, but also contemporaneous agreements or contracts that are not part of or incorporated into the agreement.

Pensacola Beach Pier, Inc. v. King, — So.3d —-, 2011 WL 2437409 (Fla. 1st DCA 2011).

An argument or reason, not previously raised, which appears for the first time in a court’s order on summary judgment and is not objected to nor the subject of a motion for rehearing cannot be argued on appeal.

Stern v. Marshall, — S.Ct. —-, 2011 WL 2472792 (2011).

A bankruptcy court may not adjudicate state law, non-core counterclaims, notwithstanding a creditor “consenting” to the jurisdiction of the bankruptcy court by filing a claim.

How to Avoid Social Media Burnout

Ethan Wall | June 23, 2011 in Social Media Law & Order | Comments (0)

Using social media to promote your practice has proven benefits, but may consume too much time if not used properly.  So what can you do to maximize your time on social media and avoid “social media burnout”?  Client development coach, consultant, and attorney Nora Riva Bergman offers the following insightful tips, followed by commentary from my personal experience:

  • Create a social media plan, and budget & block your time depending upon your objectives.

Just like any other marketing tool, its important to set a goals and implement steps to achieve that goal. Social media is no different. Most people chose not to use Twitter because they don’t know what to write about. Before using a social media tool, identify who your is audience, and what you want to tell them.  Creating content for social media is akin to writing an article for a legal publication or trade journal, just in smaller chunks and to a personal audience. Once you know what to say and who you want to say it to, schedule time in your calendar to create content, post online, and interact with others.

  • Use sharing tools on your sites, and utilities like to easily generate and share content.

Most internet sites (including this blog) having sharing buttons that accompany articles that allow you to quickly and easily share content you believe your social media connections will find interesting or related to your practice area.  These buttons provide you the ability to immediately share content via email, or on Facebook, Twitter, and LinkedIn.  Applications also exist that allow you to post your own content on all of these major social networking sites at one time. I personally use HootSuite to schedule my tweets through out the week from my computer and iPhone (you can read my tweets at

Efficiency makes any meaningful marketing activity more effective.  Applying this tips will help you use social media more efficiently and effectively, while helping avoid social media burnout when building your online relationships.

Juror Faces Jail for Facebook Chat with Defendant

Ethan Wall | June 21, 2011 in Social Media Law & Order | Comments (0)

A British juror will be sent to jail for discussing a drug and corruption trial with a defendant on Facebook, the Daily Business Review reports.

Prosecutors say the juror communicated with the defendant on the social networking site during the trial last year, with the defendant asking the juror for details of the jury’s deliberations. As is common in the United States, jurors in British trials are warned not to talk to anyone about their case, or to research it on the Internet. After being convicted of contempt for the improper communication, the Judge advised that the sentence would include a prison term. The maximum sentence for contempt is two years in jail.

The Daily Business Review reports this is the first juror in Britain to be convicted for using the Internet during a trial.

Case Law Update for June 18, 2011

Manuel Farach | June 19, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume IV, Issue 25

June 18, 2011

Manuel Farach


Hirchert Family Trust v. Hirchert, — So.3d —-, 2011 WL 2415787 (Fla. 5th DCA 2011).

Breach of fiduciary duty is a type of “constructive fraud” that entitles a claimant to attach claims to homestead property so long as the claims meet the “equitable jurisprudence” exception to the Florida Constitution’s ban on liens attaching to homesteads.  Furthermore, a court of equity, so long as it has personal jurisdiction over a party, can compel the party to convey real property in another state.

Spectrum Interiors, Inc. v. Exterior Walls, Inc., — So.3d —-, 2011 WL 2415792 (Fla. 5th DCA 2011).

Notwithstanding the Law of the Case doctrine, an appellate court has the discretion to correct an earlier ruling based on an error in law or other circumstances such as intervening legislative action or the decision of a higher court on the issue.

Underwriters of Lloyds of London v. Cape Publications, Inc., — So.3d —-, 2011 WL 2415845 (Fla. 5th DCA 2011).

The strict (“Sutton”) rule as to whether an insured can seek indemnification/subrogation against a tenant that pays landlord’s insurance premiums through pro-rata lease payments is rejected in favor of a case by case analysis based upon the intent of the parties as reflected in the lease.

Wilson v. Palm Beach County, — So.3d —-, 2011 WL 2330077 (Fla. 4th DCA 2011).

A county with “home rule power” may adopt ordinances which supersede the statutory enactments of the Florida Legislature. Specifically, Florida Statutes Chapter 163’s definition of “development” does not preempt local regulation of land used for farming.

Johnson, Pope, Bokor, Ruppel & Burns, LLP v. Forier, — So.3d —-, 2011 WL 2341391 (Fla. 4th DCA 2011).

A legal services agreement which requires legal malpractice claims to be arbitrated in lien of litigation is not void against public policy.

Smith v. Bayer Corp., — S.Ct. —-, 2011 WL 2369357 (2011).

In order for the federal Anti-Injunction Act to apply to a party seeking class certification in state court when a prior federal case also sought class certification, the same issue pending in state court must have been decided in federal court and the state court party  must have been a party to the federal lawsuit (or fall within limited exceptions).

Janus Capital Group, Inc. v. First Derivative Traders, — S.Ct. —-, 2011 WL 2297762 (2011).

For purposes of S.E.C. rules concerning the making of false statements, the “maker” of a statement to the public regarding a security is the party with ultimate control over the statement, including its content and whether and how to communicate it.

Nevada Com’n on Ethics v. Carrigan, — S.Ct. —-, 2011 WL 2297793 (2011).

A state’s requirement that legislators with financial interests in a matter pending the legislator recuse themselves from a vote on the matter does not violate the legislator’s free speech rights.

Case Law Update for June 11, 2011

Manuel Farach | June 11, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume IV, Issue 24

June 11, 2011

Manuel Farach


Wendt v. La Costa Beach Resort Condominium Ass’n., Inc., — So.3d —-, 2011 WL 2224761 (Fla. 2011).

Fla. Stat. § 607.0850 (indemnification of corporate officers and directors) permits officers and directors to seek indemnification when the corporation itself, and not an outside third party, brings suit against the corporate officers and directors.

Banco Industrial De Venezuela C.A., Miami Agency v. De Saad, — So.3d —-, 2011 WL 2224820 (Fla. 2011).

Fla. Stat. § 607.0850 (indemnification of corporate officers and directors) does not apply to foreign corporations. Even if the statute applied to foreign corporations, indemnification is not proper here because the corporate officer was prosecuted for her actions (money laundering) and not her official position.

Korte v. US Bank Nat. Ass’n, — So.3d —-, 2011 WL 2200678 (Fla. 4th DCA 2011).

A court may award Fla. Stat. § 57.105 (1) (a) and (3) sanctions in the form of “delay damages” for filing frivolous and unsupported mortgage foreclosure affirmative defenses that delay resolution of the case.

BGT Group, Inc. v. Tradewinds Engine Services, LLC, — So.3d —-, 2011 WL 2200800 (Fla. 4th DCA 2011).

An agreement which states it is subject to and sufficiently describes a collateral instrument will incorporate the collateral instrument into the agreement. An arbitration clause which is not mentioned in an agreement’s referenced “terms and conditions” nor attached to the agreement is not incorporated by reference.

Microsoft Corp. v. i4i Ltd. Partnership, — S.Ct. —-, 2011 WL 2224428 (2011).

The invalidity defense to a patent infringement claim must be proven by clear and convincing evidence.

Erica P. John Fund, Inc. v. Halliburton Co., — S.Ct. —-, 2011 WL 2175208 (2011).

Plaintiffs seeking class certification in a private securities fraud action do not have to prove loss causation in order to be certified as a class.

Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., — S.Ct. —-, 2011 WL 2175210 (2011).

The Bayh-Dole Act is silent as to who is the owner of inventions produced by federal contractors, and does not automatically vest ownership in the inventors.

Fox v. Vice, — S.Ct. —-, 2011 WL 2175211 (2011).

A court may fee shift under 42 U.S.C. § 1988 for only those counts on which plaintiff prevails, i.e., the plaintiff does not have win all counts in order to be entitled to fees.

In re Jacks, — F.3d —-, 2011 WL 2183979 (11th Cir. 2011).

A lender’s internal recording of costs and fees associated with a bankruptcy, without any attempt to enforce or collect the fees, is not a violation of the automatic stay under 11 U.S.C. § 362.

Case Law Update for June 4, 20111

Manuel Farach | June 4, 2011 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume IV, Issue 23

June 4, 2011

Manuel Farach


Erdman v. Bloch, — So.3d —-, 2011 WL 2161939 (Fla. 5th DCA 2011).

Dismissals with prejudice for failure to comply with pretrial orders are first analyzed to determine whether the failure is due to the client or the counsel. If dismissal with prejudice is due to acts of attorney, Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), holds a court must look at six factors:

1. Whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience;

2. Whether the attorney has previously been sanctioned;

3. Whether the client is personally involved in the act of disobedience;

4. Whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion;

5. Whether the attorney offered reasonable justification for noncompliance; and

6. Whether the delay created significant problems of judicial administration.

Johnson v. HSBC Bank USA, Nat. Ass’n, — So.3d —-, 2011 WL 2154408 (Fla. 1st DCA 2011).

Appeal of a mortgage foreclosure judgment is premature if a counterclaim remains pending.

Givans v. Ford Motor Credit Co., — So.3d —-, 2011 WL 2135479 (Fla. 4th DCA 2011).

A guarantee which requires a default and notice prior to becoming effective is a conditional (as opposed to an absolute) guarantee. Failure to give notice when notice is required under a conditional guarantee is a failure of condition precedent which negates the guarantee.

Konsulian v. Busey Bank, N.A., — So.3d —-, 2011 WL 2135549 (Fla. 2d DCA 2011).

Failure to satisfy conditions precedent prior to filing suit requires reversal of mortgage foreclosure judgment. Additionally, failure to determine the legal or factual insufficiency of the affirmative defense of failure to satisfy conditions precedent also requires reversal.

Caproc Third Ave., LLC v. Donisi Ins., Inc., — So.3d —-, 2011 WL 2135563 (Fla. 4th DCA 2011).

Contesting a claim of exemption from garnishment under Fla. Stat. § 222.12 requires the party, and not the attorney, to swear out the affidavit contesting the claim of exemption.

Caiazzo v. American Royal Arts Corp., — So.3d —-, 2011 WL 2135585 (Fla. 4th DCA 2011).

Long arm jurisdiction under Florida law is divided into specific jurisdiction under Fla. Stat. § 48.193 (1) and general jurisdiction under Fla. Stat. § 48.193 (2). The due process analysis is different depending on whether specific or general jurisdiction is sought, namely, “minimum contacts” must be examined under specific jurisdiction and general jurisdiction has a more rigorous requirement of “substantial, continuous, and systematic business contacts,” i.e., not de minimus contacts measured either as an absolute figure or as a percentage of the company’s total sales in the forum state. An additional reasonableness requirement applies to both specific and general jurisdiction, i.e., a reviewing court must examine “the burden on the defendant, the interests of the forum State, and the plaintiff’s interest in obtaining relief” and “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies.”  These rules are not supplanted by the Internet, and the Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), analysis of “active” vs. “passive” websites is rejected unless the website contacts meet these specific tests.

Corzo Trucking Corp. v. West, — So.3d —-, 2011 WL 2135589 (Fla. 4th DCA 2011).

A creditor can extend the life of a judgment by bringing an action on the judgment within the limitations period. The 20 year statute of limitations for actions on a judgment is waived if not raised as a defense.

Global-Tech Appliances, Inc. v. SEB S.A., — S.Ct. —-, 2011 WL 2119109 (2011)

A claim of induced patent infringement requires proof that the purported infringer knew the induced acts constitute infringement.