LITIGATION AND LITIGATION SUPPORT SERVICES

The Firm’s litigation department is staffed by experienced trial attorneys, accountants, and legal assistants who can guide individuals and businesses in pre-contract negotiations and in the formation of business arrangements to minimize potential future disputes.  However, if litigation does arise, our trial lawyers have significant experience in trials and appeals in both the State and Federal Courts of Florida in areas as diverse as commercial and business litigation; probate, guardianship and trust litigation; real estate litigation and bankruptcy and creditors rights.

Our litigation department is supported by experienced legal assistants and a department of Certified Public Accountants, and is often called upon to provide forensic accounting support. Maintaining and managing discovery with our own staff of accountants serves to better provide cohesive representation and to reduce costs to our clients. With the growing complexity of businesses and estates, forensic accounting professionals are increasingly asked to assist in the investigation of financial and business related issues. We are pleased that we are able to extend these services in a cost effective way to our clients.

Commercial and Business Litigation

While business litigation can often be time consuming and costly, the Firm’s commercial and business litigation department has the background and the experience to efficiently guide both individuals and businesses faced with a pending lawsuit or who need to prosecute an action to protect their business interests.  The Firm’s litigation department has represented partners in partnership disputes involving the need for an accounting and receivership, shareholders asserting breach of a fiduciary duty against majority shareholders and directors, as well as management defending derivative actions and corporate dissolutions.  In addition to helping businesses navigate partnership and corporate disputes, the Firm’s trial practice has included appraisal proceedings incident to dissolution cases as well as to mergers and the sale of assets.  With the Firm’s in-house forensic accounting professionals, we are strongly positioned to guide both businesses and corporations in need of protecting their business interests.

The Firm’s commercial and litigation attorneys have both prosecuted and defended lawsuits involving complex business contracts, the enforcement and defense of covenants not to compete, and business torts, including fraud and interference with contract or a prospective advantageous business relationship.

Additionally, the Firm’s litigation attorneys are experienced in representing both owners, contractors, and subcontractors in both large and small construction disputes involving construction defects, delay damages, and statutory cause of actions under Florida’s complex Construction Lien Law.

Probate, Guardianship and Trust Litigation

Complementing the firm’s extensive Estate Planning practice, the Firm’s trial attorneys are experienced and prepared to protect estate plans or to represent beneficiaries whose rights have been violated by personal representatives, trustees, or those unduly influencing family members.  The Firm’s trial lawyers have represented both trustees and personal representatives in actions wherein beneficiaries have sought to disrupt an estate plan by alleging either undue influence, lack of capacity, or the improper execution of the estate planning documents.  The Firm’s experience in this area extends to both voluntary and involuntary guardianships, as well as claims of elder abuse under Florida’s abuse and exploitation statutes.

As individuals live longer, there is an increasing potential for litigation to arise.  Most issues arise based upon the argument that mental disorders caused an individual to lack capacity or that undue influence interfered with ones testamentary wishes.  The breakdown of family relationships, which can be the result of second marriages and geographic dispersal of siblings, has also contributed to the increase in contested probate proceedings.  Our firm works closely with our clients to make sure that their wishes are properly document to help defend any potential litigation.  In order to do so, we meet with our clients on various occasions, obtain opinions from healthcare providers and conduct our own internal research to make sure the clients’ wishes can be completed.

Testamentary Capacity

In order to have testamentary capacity, at the time of executing a will and/or trust the Tesator/Settlor must have capacity to:

1)    know the natural objects of his bounty;

2)    to understand the nature and extent of his property; and

3)    to interrelate the elements to make a disposition of property according to a rational plan.

It is particularly difficult to determine incapacity in an elderly person (absent the diagnosis of advanced Alzheimer’s disease or other dementia) because the elderly person’s cognitive level is so easily effected by time of day, hearing ability in the specific surroundings, length of time of interaction or interview, blood sugar level to name a few of the variables.

Undue Influence 

The Florida Supreme Court has stated that “undue influence comprehends over persuasion, coercion, or force that destroys or hampers the free agency and will power of the testator.”  Under Fla. Stat. §733.107 (2003), once the proponent of the will/trust at issue establishes its formal execution and attestation, the burden is on the contestant to establish the grounds for revocation. However, this burden shifts to the proponents when the contesting party presents sufficient facts to raise a presumption of undue influence.

A presumption of undue influence arises if the plaintiff establishes that the defendant:

(1) occupied a confidential relationship with the testator,

(2) was a substantial beneficiary, and

(3) was active in processing the instrument.

What constitutes active procurement is generally based upon case law, and the most often cited case is Carpenter. In the Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Supreme Court set out non-exclusive factors that courts could consider on the issue of undue influence and whether the alleged undue influencer was active in the procurement.  The factors include:

(1) the presence of the beneficiary at the execution of the will;

(2) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;

(3) recommendation by the beneficiary of an attorney to draw the will;

(4) knowledge of the contents of the will by the beneficiary prior to execution;

(5) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;

(6) securing of witnesses to the will by the beneficiary; and

(7) safekeeping of the will by the beneficiary subsequent to execution.

Spouses- Confidential Relationship

A husband and wife naturally have influence on each other, but it cannot be considered undue influence. The law recognizes the special role of husband and wife. The confidential relationship which exists between a husband and wife is not one which may be considered in the law governing will contests. Since a confidential relationship is one necessary requirement which must be met before a presumption of undue influence arises, the presumption cannot arise in the case of a husband and wife. If the confidential relationship between spouses is not exempted from the presumption of undue influence rule, the presumption would arise in nearly every case in which the spouse is a substantial beneficiary because the requirement of active procurement would almost always be present.

Real Estate Litigation

Even a well drafted real estate contract or loan document may lead to litigation.  Whether prosecuting or defending a suit for breach of contract or for specific performance, the Firm’s lawyers can enforce or defend a client’s ownership or possessory interests in real property.  In this regard, the Firm’s litigation department has experience in both defending and discharging a recorded lis pendens that may effectively prohibit the owner from further disposition of the property.

The Firm’s litigation department also has extensive experience in both commercial and residential foreclosures, as well as the receivership proceedings incident to many commercial foreclosure actions.  Due to the firm’s extensive experience in both the trial and appeals of foreclosure actions, the Firm is frequently called upon by the Daily Business Review to comment on critical developments in foreclosure law.