“You are not responsible for what your friends do, but you will be judged by the company you keep.”

While this may be a generally true statement and something you probably heard from your parents. There are exceptions pursuant to the laws down here in sunny Florida concerning civil conspiracies. This article is by no means meant to be an exhaustive analysis, but instead, a brief overview and introduction to the basics of Florida civil conspiracy claims.

In Florida, a civil conspiracy requires: (a) an agreement between two or more parties; (b) to do an unlawful act or to do a lawful act by unlawful means; (c) the doing of some overt act in pursuance of the conspiracy; and (d) damage to plaintiff as a result of the acts done under the conspiracy. Eagletech Commc’ns, Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 863 (Fla. 4th DCA 2012) (quoting Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997). Civil conspiracy has not been codified under Florida Statutes, but rather civil conspiracy claims derive from Florida’s precedential decisions.

A civil conspiracy requires an agreement and meeting of the minds of two or more parties. Since a corporation is an entity which can only act through its agents, officers, and employees, a corporation cannot conspire with its own agents unless the agent has a personal stake in the activities that are separate and distinct from the corporation’s interest. Cedar Hills Props. Corp. v. E. Fed. Corp., 575 So. 2d 673, 676 (Fla. 1st DCA 1991). It must be established that the agent acted in their personal interest, wholly and separately from the corporation. The personal interest requires more than some incidental personal benefit, it applies only where corporate employees are shown to have been motivated solely by personal bias. HRCC, Ltd., 302 F. Supp. 3d at 1325 (quoting Hartman v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 4 F.3d 465, 470 (7th Cir. 1993)); see also Mancinelli v. Davis, 217 So. 3d 1034, 1037 (Fla. 4th DCA 2017) (“[A] ‘personal stake’ must be more than just personal animosity on the part of the agent. Moreover, the benefit to the agent must be more than ‘incidental’ to the benefit to the principal.”)

One of the crucial components in any civil conspiracy claim is that a separate actionable underlying tort or wrong is required. Florida Fern Growers Ass’n, Inc.; Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). This is also one of the main distinctions between a criminal conspiracy and a civil conspiracy. In a criminal conspiracy charge, the essence of the crime is the conspiracy itself. While in a claim for civil conspiracy, the substance is the civil wrong performed pursuant to the conspiracy that resulted in damage to the plaintiff. Fish v. Adams, 401 So. 2d 843, 845 (Fla. 5th DCA 1981). A well-recognized exception to the wrongful act requirement is if a plaintiff can show that mere force of numbers acting in unison may constitute an actionable wrong. Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 550 (Fla. 1977). If the plaintiff can demonstrate a peculiar power of coercion possessed by the conspirators, by virtue of their combination, a power that an individual acting alone would not possess, then such an action may create an independent tort of conspiracy Am. Diversified Ins. v. Union Fid. Ins., 439 So. 2d 904, 906 (Fla. 2d DCA 1983). In Churruca jai lai players attempted an unsuccessful strike against their employers. Thereafter the players sought reemployment, but the employers as a group colluded together and refused to rehire them. The Florida Supreme Court explicitly ruled that if the employers acted maliciously to deprive the employees of their livelihood, then the employers could be guilty of the independent tort of civil conspiracy.

There are several strategic reasons to consider including a claim for civil conspiracy if the underlying facts and evidence support it. Florida law is abundantly clear in that each act pursuance of the conspiracy, by one of several conspirators, is an act for which each is jointly and severally liable. Segal vs. International, Inc., 688 So. 2d 397, 400 (Fla. 4th DCA 1997). Additionally, pursuant to section 90.803(18)(e), Fla. Stat., a hearsay exception exists allowing hearsay statements made by coconspirators during the course and in furtherance of the conspiracy to be introduced into evidence. Lastly, from a discovery standpoint, it is usually easier to obtain all of the relevant information concerning the conspiracy. If any one defendant is stonewalling or spoliating discovery it is very easily ascertained due to being able to conduct discovery on all of the conspirators.

The case law concerning civil conspiracy in Florida is exhaustive and factually intensive. In Florida if you are part of a civil conspiracy you will not only be juhttps://www.browardbar.org/3d-flip-book/dec-2023dged by the company that you keep, but you will also be responsible for what your coconspirators do.

See original article here – Pages 14-15

In June 2019, Palm Beach County commissioners approved the requirement of the collection and taxes of Airbnb and others to pay to the tax collector. Tourist Development Taxes (TDT), also termed tourist tax, bed tax or resort tax, is a 5% charge on the revenue from short-term rentals of six months or less. TDT was aimed at online marketplaces that earn a commission from people renting out their properties to guests. These online reservation services accept payments from renters and then pass along the money to property owners.

Airbnb sued in response, citing the clause “unconstitutional and unlawful” as grounds to the tourism tax and claimed that they did not fall within the class of persons who had TDT obligations under the applicable statutes.

The crux of the argument was that such platforms do not own the properties, nor retain any physical control over the properties. They disputed that they are not parties to the rental arrangement, do not set the terms of the rentals, and are not compensated for providing accommodations. As a result, these online companies merely assist in reservations and hold no ownership or possessory interest in the properties.

Further, Airbnb argued that platforms, such as theirs, could not be defined as dealers. Fla. Stat. § 212.06(2)(j) defines “dealer” as “any person who leases, or grants a license to use, occupy, or enter upon” numerous types of short-term accommodations.

Gannon countered as to reasons why Airbnb, and other online platforms, did fall into this category and should be required to collect and remit the TDT. She alleged that since Airbnb does engage in the area of renting, leasing, or letting short-term properties, then it does exercise a taxable privilege. As such, they should be held as dealers since they accept payment on the property owner’s behalf.

In a 2-1 decision in March 2020, the Fourth District of Appeals ruled, in favor of the platform companies. The ruling also aligned with Florida’s tax requirement of being “construed in the light most favorable to the taxpayer.” The conclusion was that the online companies would not be subject to the tourism tax and established that the online platforms did not fall within the classification.

The majority opinion looked to the definition of rent, lease or let as the permitting of possessory or use rights in a property.  They stated that a dealer is able to grant a possessory interest in the property. It was determined by the court, under the county ordinance, that the online platform companies are simply conduits and do not have any possessory interests in the properties.

The dissent addressed areas of state law which focus on who receives the consideration in a lease or rental agreement.  It is the opinion of the dissent, that the person who collects monies and remits the taxes are responsible for the taxes, placing it on the online platforms since they are the ones receiving payment.

Gannon’s challenged the decision of the 4th District Court of Appeals by filing on July 1, 2020 in Florida’s Supreme Court, where they declined review.

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex litigation matters throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2021, 2020 and 2019, Florida Legal Elite in 2020 and 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding vacation rentals, then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.

When filing pleadings, this process is limited to Plaintiff’s initial pleading, Defendant’s answer and counterclaim, if applicable, and Plaintiff’s response to Defendant’s counterclaim. The initial pleading must state the applicable statute, rule, or cause of action. In response, the Defendant’s answer must include all defenses of law or fact and be filed within 5 days of receiving service. Plaintiff then has 5 days after service of the counterclaim to answer any counterclaims. Any defensive motions must filed and heard by the court before trial. It is important to note, courts can decide not to apply summary procedure in cases where can be shown by clear and convincing evidence that it is not applicable.

Under §51.011(2), the statute permits limited discovery without seeking a court order. While depositions are permitted, other discovery must be done by court order stating the timeframe. In order to preserve the shortened procedure, the period for discovery cannot be postponed except for good cause shown or by agreement of the parties.

If a party is entitled to a jury trial and exercises that right, that party must comply with the time requirements as outlined in section §51.011(3).  However, many written agreements will include a waiver of the right to a jury trial. Once ruling is rendered by a jury or court, a motion for new trial must be filed and served within 5 days. An appeal must be filed within thirty days of the final judgment date. Fla. Stat. § 51.011(5).

Florida’s summary procedure is available in several types of property proceedings. These commonly include certain possession recovery of real property, landlord actions for removal of tenants, enforcement of property liens, condominium actions, and actions to remove mobile homeowners or mobile homes. The statutes for property rights offer such remedies as eviction, right of possession, monetary damages, foreclosure of a lien, and certain equitable actions against condominium and cooperative associations.

Residential and Commercial Evictions

Summary procedure is commonly used in landlord-tenant law. Two landlord-tenant statutes apply the summary procedure statute in landlord-tenant eviction actions under Chapter 83. Florida Statute 83.21 and Fla. Stat. 83.59 both entitle the landlord with summary procedure as provided in F.S. § 51.011.

Under Fla. Stat §83.21, an action for eviction or removal is a summary procedure which offers the landlord expedited relief to determine the right to possession of the property. A landlord is entitled to file a complaint for eviction/removal and then a separate action for damages. However, other causes of action may be included in the eviction/removal actions such as damages for breach of the guaranty, distress for rent, and damages for breach of the lease contract.

When the landlord is looking to remove the tenant, Florida Stat. §83.21 states the terms that must be complied with for removal. The complaint must state “facts which authorize the removal of the tenant, and describing the premises in the proper court of the county where the premises are situated and is entitled to the summary procedure provided in § 51.011.” Summary procedure applies to tenant removal and not for ejectment actions. See Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244 (Fla. 2008).

A related statute that applies to a holdover residential tenant is Fla. Stat. §83.59. This occurs when a person remains on the property after the lease expires. This statute entitles the landlord to §51.011, where the court shall “advance the cause on the calendar.” §83.59(2). See Borjas v. Vergara, 232 So. 3d 1067 (Fla. 3d DCA 2017).

Once the complaint for Eviction for Possession is served, the Defendant must file his/her answer and affirmative defenses within five (5) days of service as to the eviction count, which does not include day of service, weekends or legal holidays. An expedited hearing is then set, pursuant to Florida’s Eviction Summary Procedure.

Summary procedure applies only to the eviction action and not to damages from unpaid rent or to other related causes of action such as breach of the lease agreement. This is done in order to determine possession speedily and without the need of determining all other issues between the parties. See Camena Invs. & Prop. Mgmt. Corp. v. Cross, 791 So. 2d 595 (Fla. 3d DCA 2001). The landlord must wait 20 days before submitting a default on a count for alleged damages in the complaint.

In the cases of possession of property where forcible entry and unlawful detainer applies, the summary procedure statute grants remedies to the wronged parties. Section 82.03 offers a remedy for wrongful possession of the property by unlawful or forcible entry. See Crocker v. Diland Corp., 593 So. 2d 1096 (Fla. 5th DCA 1992).

Enforcement by Persons in Privity with the Owner, in §85.011, entitles the application of summary procedure for persons claiming a lien for labor performed on a tenant’s personal property and to landlords claiming a lien for rent due under Fla. Stat. §713.691.

Condominium Associations and Mobile Park Owners

Summary procedure can also be applied to specific condominium association and home park owner actions.

Any action to induce compliance with agreements entered into by an association, as stated in § 718.302, may be afforded summary procedure. These actions relate to contracts that consist of the operation, maintenance, or management of condominium associations. If the condominium association fails to comply with this statute, the aggrieved party can utilize the summary procedure statute to force compliance. In addition, the prevailing party is entitled to recover reasonable attorney’s fees in actions brought under this section.

Summary procedure also applies when litigation involves the transfer of association control or claims of defect by the association. These are outlined under Fla. Stat. 718.301.

Florida Statute 51.011 can be used to compel compliance with the estoppel certificate requirements for a cooperative association as in §718.116. After a certificate request, this limits the condominium associations to a 10-day period in order to provide a certificate to a unit owner, owner’s designee, or mortgagee. This document lists assessments and other amounts owed to the association by the unit owner with respect to the condominium property.

When it comes to mobile home park owner claims, Florida Statute § 723.061 provides summary procedure when pertaining to the removal of a mobile homeowner or a mobile home. Eviction actions arise when a tenant does not pay rent, either for the dwelling or the lot, is in violation of the lease agreement, convicted of a law that threatens other residents or a land use change arises.

Property owners and managers focus on sustaining occupancy. It is to be expected that problems will occur where there is refusal to pay rent or refusal to vacate the property after lease termination. Therefore, all types of property owners and managers should understand the eviction process and the importance of summary procedure.

When searching for the right legal help, look for Florida property law attorneys who possess specialization in landlord/tenant issues. Substantial experience and knowledge regarding the intricacies of leases make the difference when looking at your unique situation.

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles litigation matters throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 20201, 2020 and 2019, Florida Legal Elite in 2020 and 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding preparing, or litigating a construction claim of lien, contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights. www.sweeneylawpa.com.

Generally, to state such a defense, the litigant must show that:

• They sought the advice of an attorney before the act was committed;
• They acted in good faith by providing the attorney with all relevant facts; and
• The advice was reasonable.

Further, it is important to mention that as a pre-requisite, the act alleged must be a specific intent crime. Therefore, it would be impermissible to use the defense when the action alleged is a general intent or strict liability crime. This is because the advice of Ccounsel defense works to negate the intent element of a specific intent crime. In essence, the defendant could not have formed the specific intent to commit the crime because they relied on counsel’s assertion that the action would not constitute a crime.

In State v. Franchi for instance, the defendant was charged with helping her husband escape from prison. Prior to the charges, Mrs. Franchi was contacted by her husband who had recently escaped from prison. He requested her assistance in avoiding re-capture. Before making herself available to help the Mr., Mrs. Franchi spoke to an attorney who advised her, albeit inaccurately, on the legal ramifications of helping her husband. The attorney’s advice was that she could not be held criminally liable because of the family member exception under Florida’s Accessory After the Fact statute. The attorney however, did not instruct Mrs. Franchi that she may also be violating Florida’s Aiding Escape statute, for which there is no family member exception. The applicability of the advice of counsel defense in the Franchi case turned on whether Aiding Escape was a specific intent crime. The court ruled that it was not, and therefore, the defense was not available to Mrs. Franchi.

New developments for the advice of counsel defense expand the defense’s applicability into the realm of bar complaints. Before, it was thought that there was a complete ban on the defense in bar disciplinary proceedings. The court, in recently decided Florida Bar v. Herman however, has found an example of when the defense is permissible.

The decision in Herman stems from a bankruptcy proceeding. Mr. Herman is an attorney but after a judgement was entered against him, he became insolvent and sought relief through filing a chapter 7 Bankruptcy petition. Mr. Herman retained counsel to assist him with the bankruptcy. During the bankruptcy proceeding, Mr. Herman was required to make certain financial disclosures, and he failed to note that he may be expecting a $2.7 million bonus for contingency fee cases that his firm had participated in. The issue was eventually referred to The Florida Bar for appropriate disciplinary proceedings. The bar took the position that Mr. Herman “‘had an obligation to be forthright’ in his bankruptcy financial disclosure forms and that he failed to live up to that obligation.” Mr. Herman on the other hand attempted to defend himself on the basis that he made the decision not to include the potential bonus during the time for making the disclosures, based on the advice of his own attorney. The attorney advised Mr. Herman that since the bonus is discretionary, and his interest in the bonus had not vested before the bankruptcy petition was filed, no disclosure was necessary. Mr. Herman testified that he relied on this advice in making the decision to exclude the potential bonus.

At the bar complaint hearing the referee did not permit Mr. Herman to use advice of counsel as a defense and suspended his law license for (18) months. The referee relied on the decision in Florida Bar v. Adorno in concluding that advice of counsel was never an appropriate defense in a bar complaint proceeding. On appeal, though, the Florida Supreme court distinguished Adorno because the bar complaint in that case was based on the defendant’s actions as an attorney. Herman was different in that Mr. Herman was relying on advice he sought through his own attorney for his personal bankruptcy. While the supreme court had some doubts about the effectiveness of the defense as to Mr. Herman, it found that “[t]o the extent that federal bankruptcy law permits an advice of counsel defense to negate a finding of bad intent, we conclude that such a defense should also be available to Herman in this Bar discipline proceeding.”

Sweeney Law, P.A. Has Vast Experience Litigating Complex Claims

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex litigation throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2020 and 2019, Florida Legal Elite in 2020 and 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding the advice of counsel defense then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

www.sweeneylawpa.com.

Sources:

1. State v. Franchi, 746 So. 2d 1126 (Fla. 4th DCA 1999)
2. Bar v. Herman, 45 Fla. L. Weekly S186 (Fla. June 18, 2020)

Dale involved injuries that the plaintiff sustained in an automobile collision with the defendant. The plaintiff sought to recover from the defendant’s auto insurance carrier, and demanded the $100,000 policy limit. Unfortunately, in filing the proposal for settlement, the plaintiff’s attorney made a mistake, and instead of requesting $100,000, the proposal purported to request only $10,000. The proposal was immediately accepted by opposing counsel who sent a check for the $10,000 amount the next day. Plaintiff’s counsel, realizing the mistake, filed a motion to withdraw the proposal for settlement, but the motion was denied.

On appeal, the plaintiff argued that the error was obvious. Based on previous settlement attempts, it was apparent that the defendant had offered more than $10,000 in the past, so opposing counsel should have known this proposal was made in error. Plaintiff’s counsel also argued that he did not have authorization, from his client, to settle the matter for $10,000. The defendant contended simply that, “[t]here was an offer, acceptance [,] and valid consideration,” and according to the rule, a withdrawal can no longer be made.

In deciding this case, the Fourth District applied some basic Florida contract law, and specifically relied on the doctrine of unilateral mistake. The Court stated that:

“In Florida, ‘a contract [can] be set aside on the basis of unilateral mistake unless (a) the mistake is the result of an inexcusable lack of due care or (b) the other party has so changed its position in reliance on the contract that recession would be unconscionable.’”

The Court also examined multiple cases to provide examples of when it is, and when it is not appropriate to rescind a proposal for settlement based on unilateral mistake. Maryland Cas. CO. v. Krasnek, was a similar case which involved an injured motorist attempting to collect insurance proceeds. There, the court permitted the insurer to rescind a proposal for settlement because it was later discovered that the coverage had lapsed. In doing the court reasoned:

“It seems to us not unreasonable for the trial judge to have seen in these ingredients the making of this kind of mistake, whether by clerical error, bad communications, or otherwise. No doubt there was some degree of negligence involved here. But, after all, mistakes do not ordinarily result from the exercise of due care.”

While the court found that there was some negligence on behalf of the insurance company, it did not rise to the level of inexcusable negligence.

The Court also considered BMW of N. Am., Inc. v. Krathen in making its decision. In BMW the court did find inexcusable negligence. This case involved a commercial dispute over a car purchased from BMW. BMW offered a settlement of $20,500, attorney’s fees, and costs, which was subsequently accepted and judgement was entered. After, BMW requested to clarify the settlement, insisting that the settlement was always contingent on the plaintiff returning the vehicle. The court denied BMW’s request stating that:

“BMW ‘cannot now be heard to complain that a condition precedent should be read into the offer merely because the attorney who drafted the offer “assumed” that both parties contemplated return of the vehicle in exchange for the $25,500.’”

The court added that counsel’s negligence, rose to the level of inexcusable negligence because counsel failed to include an important term of the settlement, and this omission “fell below acceptable professional standards.”

The Court also found a case decided in the Second District Court of Appeal, helpful in deciding Dale. Florida Insurance Guaranty Association, Inc. v. Love, again, featured a plaintiff seeking recovery on an insurance claim. This time however, the insurer made an offer in which they later sought withdrawal. There, the insurer, in declining a settlement offer from the plaintiff in the amount of $210,000, mistakenly proposed a counter-offer of $215,000. The counter-offer should have been $115,000, but for the error. Unlike BMW the court found that the error was an honest mistake and equity would permit the error to be corrected.

In the end, the Court in Dale ruled in favor of the plaintiff. The Court found that the facts were more consistent with cases involving excusable neglect, and highlighted that the plaintiff’s attorney’s error was a simple mistake and the attorney was never actually given authority to enter into a settlement for $10,000. While there may have been an offer and an acceptance, the Court found no reason to disallow rescission based on this unilateral mistake. The attorney’s actions did not constitute inexcusable negligence, therefore, the motion to withdraw the proposal for settlement should have been granted.

            Sweeney Law, P.A. Has Vast Experience Litigating Complex Claims

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex litigation throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2020 and 2019, Florida Legal Elite in 2020 and 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding proposals for settlement/offers of judgment then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

www.sweeneylawpa.com.

Sources:

1. R. Civ. P. 1.442
2. Dale v. Schaub, No. 4D19-900, 2020 Fla. App. LEXIS 11785 (4th DCA Aug. 19, 2020).
3. Maryland Cas. Co. v. Krasnek, 174 So. 2d 541 (Fla. 1965).
4. BMW of N. Am., Inc. v. Krathen, 471 So. 2d 585, 588 (Fla. 4th DCA 1985).
5. Florida Insurance Guaranty Association, Inc. v. Love, 732 So. 2d 456 (Fla. 2d DCA 1999).

Attorneys we regularly have to use technology in the courtroom, which ranges from evidentiary hearings with the use of a video clip, to a full-blown trial with several videos, power point presentations, online presentations, and the like. The last thing you want to do is arrive at the courthouse with your client and not be able to have anything function properly. Below is a brief overview of items to consider the next time you have an evidence presentation in Florida’s Seventeenth Judicial Circuit.

New Evidence Presentation System. A new evidence presentation and video monitor system has been installed in the Circuit Civil and County Criminal courtrooms located in the Seventeenth Circuit’s new West Tower of the main judicial complex. Each courtroom has been equipped with video monitors at the judges’ bench, witness stand, attorney tables, jury box and even for the spectators. Any sound source that needs to be presented is processed through the courtroom sound reinforcement system. Note though, the judge controls what is presented through the system. Anything put into the system for presentation is first viewed by the judge and then can be displayed and published on the courts monitors. The judge then has the ability to publish the evidence to just the attorneys table or to the entire courtroom.

Interface Connection. As part of the presentation systems each of these new courtrooms has an interface connection installed at each of the attorneys’ tables. Should a litigant need to present something, they can simply connect almost any device to the presentation system through these provided connections. This includes devices such as laptop computers via VGA or HDMI connections. Under an access panel on the top of the table a user will find a single grounded electrical outlet for power and pull out cables for the connection of a device through a full-sized HDMI cable, a mini 3.5-millimeter stereo audio jack, or a 15-pin VGA cable. Once the device is connected by any of these cables the source is available for display.

Evidence Presentation Podium. Another feature of the evidence presentation system is the evidence presentation podium. Each evidence presentation podium is equipped with a built-in document camera and an installed VHS/DVD player. These podiums are also equipped with the same interface jacks at the attorney tables for VGA, mini audio, and HDMI inputs. However, users of these ports must provide their own cables for connection to the ports on the podium. Each evidence presentation podium is also equipped with a touch screen control panel that acts as the remote control for all applicable devices that may be accessed through the podium.

Does Not Support Apple Devices. Any individual looking to use the new presentation systems should know that the Seventeenth Judicial Circuit does not support Apple devices. Anyone wishing to use Apple devices with the evidence presentation systems must provide any and all interfaces needed to do so.

Please remember that this equipment is provided by the court and is the property of the Trial Court Administrator’s Office.

Preparation in Advance. It is important that attorneys appearing in these new courtrooms prepare in advance of any hearing or trial for the use of the courtroom’s evidence presentation system. Attorneys are advised to spectate other court proceedings and speak with court deputies or judicial assistants regarding the use of these systems. The deputies and assistants may also be able to provide insight on how specific judges like the presentation system to be handled. Finally, it may be possible, with proper permission, to conduct a dry run of using the evidence presentation system before any trial or evidentiary hearing so as to familiarize yourself with the equipment and make sure everything is compatible. It is worthwhile to speak with the bailiff and request to schedule a dry-run of the courtroom technology; they are always very accommodating with the request.

For more information please consult the 17th Judicial Circuit’s webpage and their YouTube channel.

See page 14 for original article – https://www.browardbar.org/wp-content/uploads/barrister/2020/march/Barrister-March-2020.pdf

There are numerous purposes for retaining a PI, varying from locating people, searching for asset, to support in remedying a theft or even preforming a background check. Private investigators will be able to collect information and evidence that is important to your case and can support in time sensitive cases. Many individuals, though, worry that the evidence found from a hired private investigator may not be admissible in court. On the contrary, evidence gleaned from the use of a private investigator is generally admissible, however, one must be careful not to trounce on any legal or ethical implications.

Admissibility of Private Investigator Evidence

Usually people speculate if the evidence gathered from hired private investigators can be used and hold up in court. They can take solace that, when done correctly, the evidence collected by a PI is not only legal but may make the difference between winning or losing a case. Therefore, it’s essential to only hire a professional private investigator who is licensed and has extensive training. Overall, information gathered by a PI is admissible, as long as it was gathered in a way that did not break the law. Essentially, any conversations that the private investigator overhears or any pictures taken in public places are typically legal and admissible. Nevertheless, there are some exceptions to consider such as whether or not the people involved have a reasonable expectation of privacy.

Legality issues arise if the evidence is not collected correctly and laws were broken to obtain information. Thus, it is crucial to understand that a PI is not above the law. They must still act in a way that is legal and they should act with integrity and professionalism.

Evidence a Private Investigator Can Gather

PIs aid in many situations so that attorneys can argue their case effectively. Mostly they are used for locating people and assets as well as collecting necessary evidence. Working with a private investigator can help influence your position to find creative and efficient ways to help improve your client’s odds to win a case. Some of the main types of evidence that a PI can collect are:

• Documentary Evidence:  Such as documents that are produced to be inspected in the courtroom. These documents can be real, original or hearsay.
• Physical Evidence: This is sometimes referred to as real evidence. Itis evidence that is in the form of a physical object, such as a gun or DNA from a crime scene. This can be presented in court as a physical object, shown in a video or photograph, or also referred to in documents.
• Testimonial Evidence:  Testimonial evidence is either written or spoken evidence given by a witness under oath. It can be gathered in court, at a deposition or through an affidavit.
• Hearsay Evidence: This includes of statements made by a witness who is not present. While hearsay evidence is not admissible in court during trial, it can be relevant and valuable in a workplace investigation or other instances where the burden of proof is less vigorous than in court.
• Original Evidence: These are “out of court statements” that are presented for an applicable reason commonly referred to as hearsay exceptions or exclusions. For example, to prove a person’s motive.

Ethical Considerations of Using a Private Investigator

            When an attorney is hiring a PI for assistance in litigation, the attorney must realize that the PI is considered the attorney’s agent and is thus bound to the same rules of ethics as the attorney. Most notably, Rule 4-84 of the Florida Rules of Professional Conduct state that a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. This catch-all rule makes it clear that an attorney cannot get around the guidelines of Florida Bar ethics rules by using a private investigator. If a PI that was hired by an attorney is shown to have acted or performed an act that would have been unethical for the attorney themselves to perform, the attorney could be liable for ethical sanctions. 

Take Away

The important take away here is that if there is enough money at stake private investigators will be used. After that, it will be up to the attorneys and judge to decide how what they’ve gathered can be used.

Sweeney Law, P.A. Has Vast Experience With Private Investigators in Florida Litigation

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex litigation that concerns the use of Private Investigators throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding Private Investigators contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

www.sweeneylawpa.com.

These types of deals are often known as “Post-Occupancy Agreements”. By definition, this is an agreement where the buyer of a property agrees to allow the seller of the property to stay on the property past the settlement date. These are not boiler plate agreements, though, skilled legal acumen is vital to make certain that all parties are protected as there can possibly be huge liability issues if these agreements are not organized and examined properly.

One important area of concern is which party maintains liability during this post closing period. Sellers should be liable for any injuries, loss, waste or damage to the property post-closing. Usually, agreements will contain language that sellers need to carry their own liability insurance coverage until they vacate the premises to ensure they do not expose themselves or the buyer to severe personal liability by not carrying insurance during the post-closing period.

Another possible concern occurs in the case that the seller refuses to vacate after the post-closing move out date. The agreement must outline the ramifications of this action. All possible situations should all be considered in the Post-Occupancy Agreement and the appropriate provisions need to be included to deal with these possibilities.

Normally these types of agreements require a security deposit, which is withheld from the seller’s funds by the title company. This helps to ensure that the buyer is protected and makes sure that the seller does not damage the property during the rent back period. After a final inspection at the end of the rent back period, if everything goes well, the buyer informs the title company to release the security deposit back to the seller. Alternatively, if there is a problem during the final inspection, the buyer and seller must come to an agreement on how the security deposit funds are to be distributed.

If you are a buyer or seller thinking about entering into a post-closing occupancy agreement, it is very important that you engage a reputable attorney to investigate the legal fortitude of the agreement in the transaction and make sure that your interests are protected.

Sweeney Law, P.A. Has Vast Experience With Post-Occupancy Agreements

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex litigation that concerns the use of Post-Occupancy Agreements throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2020 and 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding Post-Occupancy Agreements contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

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For a claim of civil conspiracy to be actionable a separate actionable underlying tort or wrong is required. See Florida Fern Growers Ass’n, Inc.; Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). Note though, there is no requirement that each co-conspirator commit acts in furtherance of the conspiracy; it is sufficient if each conspirator knows of the scheme and assists in some way. Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157, 1160 (Fla. 3d DCA 2008). In the case of Blatt v. Green, Rose, Kahn & Piotrkowski  it was stated that “the gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.” 456 So.2d 949, 951 (Fla. 3d DCA 1984); see also Phelan v. Lawhon, 2017 WL 1177595 (Fla. 3d DCA 2017) (civil conspiracy claim must show independent wrong that would be an actionable wrong if it was committed by one person); Walters v. Blankenship, 931 So.2d 137, 140 (Fla. 5^th DCA 2006) (action for civil conspiracy generally requires underlying wrong or tort).

Normally, a company cannot conspire with its officers, employees, and agents. Mancinelli v. Davis, 2017 WL 1278074, *2 (Fla. 4^th DCA 2017). However, if an agent has a personal stake in the underlying activities that is separate from the company’s interest that results in more than an incidental benefit to the agent then an exception is made to this rule. Id.

An alternative basis for a civil conspiracy claim is allowed where the plaintiff can show some “peculiar power of coercion” that the conspirators had by virtue of their combination, which an individual acting alone would not possess. See Churruca v. Miami Jai-Alai, Inc., 353 So.2d 547 (Fla.1977) (jai-alai players stated claim for conspiracy against jai-alai fronton owners who allegedly conspired to prevent players from getting jobs in arenas after a players strike); Snipes v. West Flagler Kennel Club, Inc., 105 So.2d 164 (Fla.1958) (claim for conspiracy was stated against five kennel club owners who refused the plaintiff greyhound racer privileges at their tracks and used intimidation to drive the plaintiff out of business); Margolin v. Morton F. Plant Hospital Ass’n, Inc., 342 So.2d 1090 (Fla. 2d DCA 1977) (physician stated a claim for conspiracy against a group of anesthesiologists who refused to provide their services to plaintiff’s patients, depriving him of his hospital privileges, and thereby driving him out of his practice).

Importantly, when a party sues a co-conspirator for conspiracy, the co-conspirator may be held accountable for the full amount of the damages caused, regardless of whether he committed the underlying tort or just conspired with another to commit the underlying tort. This is very noteworthy where the co-conspirator is collectable if a judgment is issued, but the party who perpetrated the underlying tort is not collectable.

Additionally, alleging a civil conspiracy initiates a significant exception to the otherwise strict hearsay rule, which usually prevents the admission of out of court statements offered to prove the truth of the matter asserted. When a plaintiff alleges a conspiracy, though, any statement made by a co-conspirator in furtherance of the conspiracy is considered an exception to the hearsay rule and is admissible at trial. This hearsay exception regularly allows testimony or documents to be admitted at trial that otherwise would not be, sometimes making the conspiracy simpler to prove than the underlying tort itself.

In total, if a plaintiff can effectively claim the elements of a civil conspiracy in an action, the assertion has benefits that often will make the plaintiff’s claim easier to prove at trial and easier to collect upon obtaining a judgment.

Sweeney Law, P.A. Has Vast Experience With Civil Conspiracy

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex litigation that concerns civil conspiracy claims throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding civil conspiracy contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

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1. At least 80% of the occupied units are occupied by at least one person 55 years of age or older;
2. The facility or community publishes and adheres to policies and procedures that demonstrate its intent to in fact be a provider of housing for older persons; and
3. The facility or community complies with rules established by the U.S. Department of Housing and Urban Development (HUD) for verification of occupancy.

The “80 percent requirement” has given rise to the “20 percent rule” which has generated many issues and numerous misunderstandings in these communities. While HOPA compels that at least 80% of the occupied units be occupied by at least one occupant that is the requisite age or over, neither HOPA, nor the rules adopted by the HUD, specify how the association must treat the remaining 20% of the community. In fact, on April 1, 1999, when the HUD published Federal Regulations implementing the Housing For Older Persons Act of 1995, they commented that:

“There continues to be confusion concerning what is often referred to as the 80/20 split. HOPA states that the minimum standard to obtain housing for persons who are 55 years of age or older status is that “at least 80%” of the occupied units be occupied by persons 55 years or older. There is no requirement that the remaining 20% of the occupied units be occupied by persons under the age of 55, nor is there a requirement that those units be used only for persons where at least one member of the household is 55 years of age or older. Communities may decline to permit any persons under the age of 55, may require that 100% of the units have at least one occupant who is 55 years of age or older, may permit up to 20% of the occupied units to be occupied by persons who are younger than 55 years of age, or set whatever requirements they wish, as long as “at least 80%” of the occupied units are occupied by one person 55 years of age or older, and so long as such requirements are not inconsistent with the overall intent to be housing for older persons.”

Essentially the HUD is stating that the issue of the remaining 20% is to be governed by the association’s governing documents (i.e. private contract law) and local ordinance. For instance, an association can determine that for the other 20% persons can be no younger than a different minimum age established for the community. Commonly in Florida that age is set at 45. This would mean that no one in the community can be younger than 45.

Of course, this does not mean that you can’t have people younger than the minimum age visit. If a residents grandchildren come down, most communities will allow guests of any age for up to 15 days 2 times per year and may have other applicable exceptions as well.

Sweeney Law, P.A. Has Vast Experience With 55 and Older Community Issues

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex litigation that concerns community association issues throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding 55 and Older Communities or the 80/20 Rule then contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

www.sweeneylawpa.com.