Jury Orders FPL to Pay the Realtor $1.5 Million 

Though there are many instances in which only a written contract will suffice in the state of Florida, there are a few in which verbal contracts and handshakes are just as binding. The situation between Florida Power & Light, Co. and this realtor serves as a prime example of one of them.

Under Florida law, contracts are valid if there is an offer and acceptance of that offer in exchange for consideration, which includes handshake agreements. Moreover, in order for a contract to be valid, at least one party must follow through with the terms of the agreement. Of course, in many breach or oral contract cases, it is difficult for the plaintiff to prove that the defendant agreed to the terms at all. Fortunately, in the realtor’s case, proof was easy to come by.

This realtor and the FPL representative made the agreement in a very public setting in a very verbal manner. In fact, the agreement was so publicized that several party goers were able to attest to the fact that the FPL rep did, in fact, promise the realtor commission, and that the two shook on it. Those party goers were deposed and asked to testify.

In addition to several eyewitness testimonies, the plaintiff also had phone and email records on his side. The records showed that the plaintiff tried to contact the FPL representative several times over the course of the year regarding the matter but that the FPL rep ignored those attempts. Those records proved to be very compelling evidence in favor of the plaintiff’s case, and evidence with which the jury could sympathize.

With much of the evidence in favor of the realtor, the jury sided with him and ordered FPL to pay him his due commission plus damages, which amounted to $1.5 million.

Typically, Oral Contracts Are Not So Easy to Prove 

In most situations, oral contracts are made in private, making them difficult, if not impossible to prove. However, just because an agreement was made in private does not mean that participating parties should not be held to them. If you entered an oral contract with someone and sealed it with a handshake, and if that person reneged on his or her end of the bargain, you have a long, uphill battle ahead of you. However, with the right Fort Lauderdale business litigation lawyer on your side, you can fight for and obtain justice. Contact the office of Edward J. Jennings, P.A., today to schedule your case evaluation.

Resources:

therealdeal.com/miami/2017/07/12/palm-beach-jury-fpl-must-pay-1-5m-after-failing-to-pay-real-estate-commission-on-handshake-deal/

floridabar.org/public/consumer/tip012/

If you hired a person as an independent contractor but it turns out that you have been misclassifying them, we can help you resolve the issue and move on from it with as few repercussions as possible.

Employee Vs. Independent Contractor 

According to Florida Statute 440.02, an “employee” is a person who receives compensation for performance under an employment contract or any means of express or implied, written or oral agreement. An officer of a corporation can be an employee unless he or she expresses a wish to be exempt from this category.

An “independent contractor,” on the other hand, is someone who meets at least four of the following criteria (unless a person is an independent contractor in the construction industry, in which case he or she is technically considered an employee of the general manager or company unless a contract exists that expresses otherwise):

• The person owns a business that maintains its own separate work facility, equipment, materials, vehicle, and other accommodations;
• The person possesses a federal employer identification number, unless he or she is a sole proprietor and is not required to do so;
• The person receives compensation that is paid to the business and not the individual;
• The person holds a bank account in the name of the business entity for the purpose of paying for business expenses;
• The person is able to perform work for any person or entity in addition to performing work for you without having to complete a job application; and/or
• The person receives compensation on a bid basis or upon completion of assignments as outlined in the independent contractor agreement.

If a person does not meet four of the above requirements, he or she may still be classified as an independent contractor. Review the statute for additional exemption criteria.

Six-Part Test for Classifying Employees 

When trying to determine whether or not a worker is an independent contractor, there are a few different tests that you can perform. Each test applies to different agencies, but this six-part test encompasses them all, making it the most effective way of determining a worker’s status:

1. Is the worker an integral part of your business?
2. Does the worker the worker’s managerial skill affect his or her opportunity for profit or loss?
3. Does the work performed by the person require a unique set of skills and initiative?
4. How does the worker’s relative investment compare to that of your investment?
5. Is the relationship between the worker and employer permanent or indefinite?
6. What is the nature and degree of the worker’s control?

Your answer to this last question is probably the most important, as independent contractors should be able to choose which work they will and will not perform, how they want to perform it, how much they should get paid for doing it, and what hours they work.

Consult a Fort Lauderdale Business Litigation Attorney 

If you have doubts about a worker’s status, or if you are thinking about hiring an independent contractor, call the law offices of Edward J. Jennings, P.A. Our Fort Lauderdale business litigation lawyers can help you review the law and perform the six-part test to come up with a definitive and accurate classification.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0400-0499/0440/Sections/0440.02.html

Though there are several reasons an employer might be held liable for an employee’s wrongful actions, including failure to implement privacy policies, failure to properly train employees, and failure to investigate complaints, the two most common reasons employers are forced to share liability include negligent hiring and negligent retention. If one of your employees was accused of stealing from customers or clients, reach out to the Fort Lauderdale business litigation lawyers at the office of Edward J. Jennings, P.A. to start building your defense right away.

Negligent Hiring and Negligent Retention 

Negligent hiring or retention liability cases arise from acts performed by employees that are outside of their scope of employment. Stealing from customers is, obviously, outside of a person’s scope of employment. Unfortunately, employers can be held liable for this because of the assumption that he or she should have known that he or she was hiring a criminal. If the employer did not realize someone was a criminal upon hiring him or her, it is then assumed that the employer did not conduct a thorough pre-hire investigation.

A prime and current example of an employer knowingly hiring criminals deals with Uber. Uber, as of November of 2017, was under fire for hiring and retaining known criminals. After claims of harassment, drunk-driving, theft, and assault, amongst other things, an investigation was performed. Investigators found that the company knowingly hired 12 drivers with felony offenses, 17 with motor vehicle violations, three with drunk driving convictions, and 63 with licensing issues. The company was fined nearly $10 million.

Though Uber is an extreme example of negligent hiring practices, as the company knew about the convictions and violations and hired the drivers anyway, employers can still get in trouble for failing to follow through with standard hiring practices, such as performing background checks and calling references.

If a person passes his or her background check and references come back clean, the employer needs to use his or her discretion when deciding whether or not to retain the employee. For instance, if a customer complains about missing money but the employer does not investigate the complaint, the employer could be held liable. If one or more employees complain about the employee stealing but the employer keeps the one employee on regardless, he or she may be guilty of negligent retention.

Hire a Fort Lauderdale Business Litigation Lawyer to Help 

As a business owner, you have a duty to your customers to protect them, their confidential information, and their assets. If you hire an employee that violates that duty, you may be held financially and legally responsible. Retain the help of our skilled Fort Lauderdale business litigation attorneys at the office of Edward J. Jennings, P.A. We can help you navigate the legal process and come out the other end having to pay as little damages as possible.

Resources:

law.cornell.edu/wex/respondeat_superior

newsweek.com/uber-fined-hiring-drivers-criminal-records-718095

Know How the Investigative Agency Wants its Data 

Early and ongoing communication are key for helping you understand what type of data the investigative agency is looking for, but also, communication can help you clarify other major hurdles, such as data organization. The information you present to the FTC needs to be clear, concise, and accurate. It should provide sufficient detail without being overwhelming or confusing. In addition to providing clear and concise data, businesses can help the investigative agency by providing their methodologies for arriving at any proposed conclusions. This can significantly help to reduce any work the agency has to put forth in the review process, which can speed up the process exponentially.

Some steps that the FTC recommends doing include:

• Present empirical work as early on in the process as possible. Submitting it late would be counterproductive.
• Submit any white papers or other similar submissions directly to the Bureau of Economics and the Commission early on the in the process to guarantee a productive dialogue.
• Submit all empirical work should provide the FTC with enough detail so that FTC staff can thoroughly understand the methodology used to conduct the analysis and how the business came to its conclusions. Summaries generally do not suffice.
• Show data used to conduct the study should be presented along with the conclusions and detailed methodology.
• Be sure to include any programs used to calculate results and compile/transform data.

The general idea of this post and the last is to help streamline the merger process as much as possible. Mergers and acquisitions can be time consuming and complicated, but if you and the investigative agency work together from beginning to end, you can make the process much more simple and efficient. And, of course, it does not hurt to work with an attorney as well.

Retain the Help of a Skilled Business Litigation Lawyer 

At the office of Edward J. Jennings, P.A., our Fort Lauderdale business litigation attorneys strive to make business ownership as lucrative and hassle free as possible for Florida business owners. Oftentimes that means helping business owners through complex legal issues, but other times, it simply means providing them with the legal advice necessary to streamline routine business procedures. If you want help making the merger process more efficient, schedule an appointment with one of our attorneys today.

Resource:

ftc.gov/about-ftc/bureaus-offices/bureau-economics/best-practices

Defining a Breach of Contract 

Not everything a person or entity does that dissatisfies you is a breach of contract. A breach of contract has to be to an act or non-act that is in direct violation of the written agreement. For instance, if you hired a freelancer to create a website, and in the contract you stipulated that he or she would receive 25 percent of the total payment upfront, another 25 percent once specified milestones were met, and the remaining 25 percent upon final approval of the project, and he or she collected the initial 25 percent of payment but then never got passed the completion of the first milestone, he or she would be guilty of violating the contract. On the other hand, if you make it impossible for the freelancer to satisfy the job outlined in the contract, you could be held liable for breach of contract.

How a Breach of Contract Might Affect You 

Depending on the violation, a breach of contract can be so minimal that it goes unnoticed, or it can be so significant that it results in financial loss and hurt business relationships. Bearing that in mind, most small claims courts will only hear a breach of contract suit if it meets the criteria for one of the following four types of breaches:

• Fundamental Breach: A fundamental breach occurs when the breath is so fundamental that it gives the other party a right to terminate the contract on the spot and sue for damages. A fundamental breach generally deprives one party of what they should reasonably expect by contracting with the other party.
• Material Breach: A material breach occurs when one party fails to perform the duties specified in the contract. This is usually the most serious of breaches, as it usually results in non-payment for work performed, or lack of results for work paid for.
• Anticipatory Breach: As its name implies, a party may sue for an anticipatory breach when no actual breach has occurred, but when it becomes clear that the other party will not execute his or her end of the contract within the allotted time. For instance, if you hire someone to build and launch your website by January 1, but they have yet to meet any of the milestones by December 27, it is clear that your website will not be launched by the anticipated date and so you can sue for anticipated damages, such as lost sales.
• Minor Breach: A minor breach is a partial breach. A minor breach might occur when the freelancer completes the website as contracted by the specified date, but it has glitches that prevent it from fully loading on any device. Though you cannot sue for a material breach (the freelancer did complete the job, after all), you may be able to sue for monetary damages caused by the glitch, or for an order that forces him or her to make corrections.

In addition to ensuring that the breach meets one of the above set of criteria, you also need to establish a few facts in order to have a credible case to present in small claims court. The four facts that you must verify include:

• An actual contract existed;
• A breach occurred;
• You lost money because of the breach; and
• The defendant was responsible for the loss of money.

Your Legal Rights 

More often than not, individuals who sue for breach of contract generally just want to be compensated for money lost and move on. However, some breaches result in much more headache than merely lost money, which is why the courts provide for different types of remedies. Some common monetary remedies awarded in breach of contract suits include:

• Compensatory Damages: This type of award is meant to reimburse you for money lost due to the breach.
• Liquidated Damages: Some contracts specify what types of damages will be owed in the event of a breach. These are known as liquidated damages.
• Consequential Damages: These types of damages are awarded if all parties were aware that a breach would result in potential losses.
• Attorney Fees: If the court determines that a breach did occur, the defendant would have to pay for the plaintiff’s attorney and court fees in addition to his or her own.
• Punitive Damages: Punitive damages are awarded as a sort of punishment for overtly offensive behavior, and are meant to prevent the defendant from making the same mistake twice. Though punitive damages are rarely awarded in breach of contract cases, they can and have been awarded.

Oftentimes, a breach of contract results in more than just monetary loss. When this occurs, the court may award one of the following types of damages:

• Recession: The court may cancel the contract, order the return any money paid, and demand the matter to be dropped so that it is as if the contract never happened.
• Specific Performance: In rare instances, the court may order the offending party to follow through with the initial terms of the agreement.
• Reformation: A reformation may occur when the court feels that the contract was not suitable for what was being asked. In this instance, the court may rewrite the contract to better suit the actual intention of the contract.

Hire a Fort Lauderdale Business Litigation Attorney 

Breach of contract are some of the most commonly heard suits heard in small claims courts because oftentimes, a breach of contract can result in substantial loss for a business of any size. If you are dealing with a breach of contract, it is important that you know your rights so that you can quickly and effectively remedy the situation. Do not let a breach of contract ruin your business, and reach out to the law offices of Edward J. Jennings, P.A. to speak with a knowledgeable Fort Lauderdale business litigation lawyer about your rights today.

You May Not Be Able to Dismiss a Counterclaim 

Too often, business owners file a counterclaim not because they necessarily believe that the plaintiff is wrong, but more so as to prove that the plaintiff is not perfect either. For instance, a client may file an errors and omissions suit against you for failure to perform specified services, and you may file a counterclaim because the client violated a previous contract you had with him or her. The two issues are completely separate, and the client’s breach of a previous contract in no way defends your violation of the contract in question. Once you file a counterclaim, you may decide later that your counterclaim should have been brought as a separate action. However, if the case has already progressed and if trial is imminent, you may not be able to withdraw your counterclaim. If you cannot withdraw your counterclaim, you may lose all right to litigate the client’s breach of contract entirely.

This type of situation is a lose/lose for you, as even if you win the E&O suit, you will still have to pay for attorney fees and other costs associated with the lawsuit. If you lose, you will be forced to pay attorney fees and a settlement, and you will have lost all opportunity to win your money back via a contract violation claim.

However, there is a chance that the judge might have mercy on you. According to the Federal Rule of Civil Procedure 41(a)(2), every counterclaimant has the right to withdraw a claim without prejudice, and upon approval of the judge. While the judge is free to use his or her discretion when deciding whether or not to allow dismissal, there are some factors he or she must consider.

In accordance with Federal Rule 41(a)(1)(A)(i), the court must consider whether or not the motion for dismissal was filed before a responsive pleading is served. If there was no responsive pleading, the judge may still approve a dismissal if the motion was filed before evidence was introduced at a hearing or trial. Beyond that, the judge may use his or her discretion to dismiss the counterclaim, and may consider factors such as the opposing party’s efforts and expenses in preparing for trial, whether or not there is a sufficient explanation for dismissal, and where in the litigation proceedings is the current case (was the claim just filed or is a motion for summary judgement pending?).

If You Are Sued, Always Contact a Fort Lauderdale Business Litigation Attorney 

Of course, if you or your business is sued for any reason, you should never approach litigation without adequate representation. The knowledgeable Fort Lauderdale business litigation lawyers at the office of Edward J. Jennings, P.A., can help you prepare for your case and, if we deem it necessary, file a counterclaim. If we determine that a separate motion is necessary, we will let you know and help you through this first case in addition to helping you prepare for the next one. To obtain the representation you need, reach out to our law offices to schedule your initial consultation today.

Resources:

law.cornell.edu/rules/frcp/rule_41

law.cornell.edu/rules/frcp/rule_41#rule_41_a_1_A_i