Mediation, Arbitration, and Litigation

Mediation is becoming increasingly popular in Florida courts; it is estimated that 75% of all cases in Florida are settled through mediation.

Mediation and arbitration are both alternatives to litigation, the process of presenting your case before a judge or jury.

When arbitration occurs, both sides present their case to the arbitrator, who then makes a decision. Once that decision is made, it is final and usually legally binding. Mediation allows both sides to discuss their issues and try to come to some kind of agreement together. The mediator’s job is not to make a decision but to facilitate a discussion. It is the job of the parties involved to come to a mutually beneficial compromise.

AgreementMediation can be court-mandated by a judge before the dispute goes to trial, or the involved parties can choose to go to mediation on their own. It is a good option to consider before bringing a case to trial and incurring all the financial and emotional hardships that come with litigation.

If mediation does not work and the case does happen to go to trial, Mr. Boyer is licensed to practice law in all Florida courts.

Source: FindLaw

*Image courtesy of Stockfreeimages.com

Business Checkup: A Legal Business Audit

It is necessary for businesses to conduct a legal business audit periodically in order to determine any existing legal problems. An audit should be done by an attorney so that attorney-client privilege applies and the results of the audit cannot be used against the company in legal proceedings.

A legal business audit will review the company’s documents, practices, and activities to determine any legal issues that may arise in the future and potentially lead to lawsuits, the interruption of the business, or criminal penalties. The audit should also show the company how to correct these issues.Legal Business Audit

An audit may also reveal unknown business opportunities, such as the discovery of unprotected intellectual property.

The legal business audit may include a review of the following areas: Corporate Records, Company Stock, Contracts, Federal and State Filings, Protection of Intellectual Property, Insurance, Employment forms and policies, and the Compliance of the company’s website in accordance with Florida State Law.

The complexity of the audit is unique to each company depending on factors such as the industry of the company, the number of employees and shareholders the company has, and where the company is in its growth objectives.

Sources: CorpLaw ; Bullivant

*Image courtesy of Stockfreeimages.com

Port of Panama City Expands for International Trade

International trade growth has led to the expansion of Florida’s only container shipping port, which is good news for Florida importers and exporters.International trade: import and export

Bay County, Florida is home to Florida’s only container port, the Panama City Port in Northwest Florida, and the port will be expanding.

Port Panama City has access to the Gulf of Mexico through an almost 9-mile channel. The port has deepened this channel to 36 feet, and it is in the process of constructing two buildings at the new off-site Intermodal Distribution Center to be used for port arrivals awaiting pickup and port arrivals that will be delivered in the U.S. by truck or train.

The expansion of the port, the new U.S. trade agreements with South American and Latin American countries, and the upcoming expansion of the Panama Canal offer new opportunities to expand international trade between Florida and these countries.

There are currently 15 seaports in Florida: Port of Fernandina, Port of Jacksonville, Port Canaveral, Port of Fort Pierce, Port of Palm Beach, Port Everglades, Port Miami, Port Key West, Port Manatee, Port of St. Petersburg, Port of Tampa, Port Citrus, Port of Port St. Joe, Port Panama City, and Port of Pensacola.

We have assisted clients through the processes of trade, importing and exporting goods, and customs law.

 

Sources: Florida Trend ; Florida Seaports; Port Panama City USA

 

*Image courtesy of Stockfreeimages.com

Florida Home Inspection

freeimage-8560039 (1024x724)In any Florida residential real estate transaction, a home inspection should be done before the house is closed on. The inspection should occur immediately after the contract or purchase agreement has been signed, if not earlier.

Before you sign the agreement, you should make sure there is an inspection clause that makes your final obligation to purchase the house contingent on the results of the inspection. Hiring a real estate attorney will help you through the entire process of buying the house, including reviewing the contract to make sure this clause is present.

Although it is not required for you to be present at the home inspection, it is recommended. If you are there, you can observe the inspector and ask questions.

An inspection should be done by a licensed inspector. It should identify the need for major repairs and highlight any builder oversights. There are two different types of inspections: a full inspection and a four-point inspection.

freeimage-1345036A four-point inspection is generally less expensive than a full inspection. It includes the inspection of the roofing, electrical work, heating and air conditioning, and plumbing. It does not include the inspection of the water heater, attic insulation, walls, ceilings, the basement, other structural components, etc.

These would all be included in a full inspection.

The buyer of the home is usually the one who pays for the inspection, but it is in the best interest of everyone involved to have an inspection in order to make the sale of the home as clean of a transaction as possible.

If you are the seller of a house, it may be a good idea to do a home inspection before you put the house on the market. This will allow you to identify and fix problems, which may increase the value of the house.

Sources: Florida Realtors ; American Society of Home Inspectors

Holiday Office Hours

Boyer Law Firm Holiday HoursOur office will be closed on the following days:

Monday, December 24
Tuesday, December 25
Tuesday, January 1.

We will be open on Monday, December 31.

We wish everybody a safe and Happy Holiday!

*Image courtesy of Stockfreeimages.com

Revocable Living Trusts

Revocable Living TrustA revocable living trust is an artificial entity used as an estate-planning tool that manages your assets during your lifetime and distributes them upon your death. It is called a revocable trust because you may modify or terminate the trust during your lifetime, as long as you are not incapacitated.

A trust is setup by a property owner, called a “grantor,” who appoints a person to manage the trust, called a “trustee.” In the case of a revocable living trust (there are other kinds of trusts), grantors usually names themselves as the primary trustee and name a successor trustee to control the trust at the time of their death.  When the grantor dies, the trust is no longer revocable.

The main attraction of a revocable living trust is to avoid the probate process.  A trust may bypass the probate process because it is said to “live on” after the grantor’s death.  In order to avoid the probate process, all of the grantor’s assets must be transferred into the trust prior to death. If all of the deceased assets are not in the trust, the estate may be subject to probate.

A living trust will also keep the distribution of the estate a private matter because it is not public record like the probate process.

A living trust will not exempt you from taxes or debts to creditors.

Creditors may claim debts from a trust up to two years after the death of the grantor. Because of this long waiting process, some trustees will submit the estate to probate simply to take advantage of the fact that creditors will only have a three month window to collect debts owed.

There are many pros and cons of a revocable living trust. If you are trying to decide whether or not one is appropriate for you, contact an Estate Planning attorney.

*Photo courtesy of Stockfreeimages.com

Employer Identification Number (EIN): Do I Need One?

An Employer Identification Number (EIN), or Federal Tax Identification Number, is a nine-digit number assigned by the IRS to identify a business entity; it is like a social security number for businesses.

Applying for an EIN number is part of the incorporation process. You will need this number for tax returns, to setup a bank account, and for other identification purposes.

You need an EIN number if any of the following apply to you:When you need an EIN number

– You have employees.

– Your business operates as a corporation,  LLC, or partnership.

– You file any of the following tax returns:

  • Employment
  • Excise
  • Alcohol, Tobacco and Firearms

– You withhold taxes on income, other than wages, paid to a non-resident alien.

– You are involved with any of the following organizations:

  • Trusts (except certain grantor-owned revocable trusts), IRAs, Exempt Organization Business Income Tax Returns
  • Estates
  • Real estate mortgage investment conduits
  • Non-profit organizations
  • Farmers’ cooperatives
  • Plan administrators

Here at Boyer Law Firm, helping you to obtain an EIN number is only one of the many incorporation services we offer.

* Photo courtesy of Stockfreeimages.com

Immigration: Deferred Action for Childhood Arrivals

The Deferred Action for Childhood Arrivals Program is a program that will delay the deportation of an individual who entered the U.S. illegally as a child if they meet certain conditions. The action will be deferred for two years, subject to renewal, and they may qualify for work authorization.

In order to be eligible for this program, you must meet the following requirements:Immigration for childhood arrivals

– You must be under the age of 31 as of June 15, 2012.

– You must have come to the U.S. before your 16th birthday.

– You must have resided in the U.S. from  June 15, 2007 to the present time.

– You must be physically present in the U.S. at the time you make your request for the program.

– You must have entered the U.S. without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012.

– You must be currently be enrolled in school, have graduated or obtained a certificate of completion from high school, have obtained your GED, or be an honorably discharged member of the Coast Guard or Armed Forces

– You must not have been convicted of a felony, serious misdemeanor, three or more of any other kind of misdemeanor, or pose a threat to national security.

– You must be 15 or older, unless you are currently in the removal process.

This program is enacted on a case-by-case basis. You must be able to prove you meet all of the requirements, complete the required forms, and submit the forms along with a fees (Currently, the fees total to $465). You will then receive a notice with an appointment to visit the  Application Support Center (ACS) for biometric services.

If you think you qualify for this program, you should contact an immigration attorney to make the process smoother. Immigration laws are complicated, and failure to execute this process correctly could result in your request being denied and/or deportation.

Source: USCIS

Times to Update your Estate Plan

When to update your Estate PlanIt is very important to keep your estate plan updated. There are many factors and life events that affect your estate plan which is why you should keep it updated.

Large estates (those over the applicable exclusion amount) should be reviewed every year.

All other estates should be reviewed every four years.

You should also review your estate plan when the following life events occur:

– Change in value: If the value of your estate has increased or decreased by 20% or more.

– Change in economic status: If the value of your assets, your income level, or your income requirement changes.

Retirement

– Change in occupation or employment

Changes in family situations: If you, your children, or your grandchildren have married, divorced, been born or adopted, passed away, or become ill or incapacitated. Also, if other individuals have become dependent on you.

– Changes in business interests:

  • Formed, purchased or sold a closely held business
  • Reorganized or liquidated a closely held business
  • Instituted a pension plan
  • Executed a by-sell agreement
  • Deferred compensation
  • Changed employee benefits

– Major transactions:

  • Inheritance
  • Substantial gifts
  • Borrowed or lent a substantial amount of money
  • Purchased, leased or sold material assets or investments
  • Changed residences
  • Changed significant property ownership
  • Become involved in a law suit

– Change in insurance coverage: life, health, disability, medical, liability, etc.

Death of a trustee/executor/guardian

Other important changes: Any changes in your life that you feel affect your estate plan.

If you change part of you estate plan, you should review the entire plan to make sure it remains cohesive and effective. Due to the legal complexities of Estate Planning, we recommend that you contact an attorney to create or update your estate plan.

And remember… Estate Tax laws may change at the beginning of 2013.

Source: Waddell & Reed Financial Advisors

Florida Power of Attorney

A Power of Attorney is a legal document in which a person, the “principal” gives another person, the “agent,” the authority to act on the principal’s behalf in certain circumstances. These circumstances can be narrow or broad, depending on the way the document is written.Power of Attorney

The Power of Attorney is created to perform almost any legal act that the principal cannot do, such as sell a car or home, access bank accounts, or make health care decisions. There are three kinds of POAs in Florida:

  1. Limited Power of Attorney gives the agent authority to conduct only a specific act.
  2. General Power of Attorney gives the agent a much broader authority, but there must be a list of the acts the agent is entitled to perform in the document.
  3. Durable Power of Attorney remains in effect if the principal becomes incapacitated. This is not the case with the other two forms. There must be specific language in the document stating that the power of attorney will continue if the principal becomes incapacitated. Most POAs in the state of Florida are Durable POAs.

A Springing Power of Attorney becomes effective once the principle becomes incapacitated, as deemed by a physician. Florida no longer allows for them to be created, but if the POA was written before September 30, 2011, it is still effective.

POAs should be drawn up by an attorney. Pre-printed forms are likely to fail in providing the desired protection because every principal’s needs are different.

If the agent is unsure of whether they are authorized to perform a specific act, they should check with an attorney to review the POA. If the agent performs an act they are not legally entitled to perform, they can be punished both civilly and criminally.

Under a Power of Attorney, an agent may only act on the principal’s behalf while the principal is still alive.

Source: Florida Bar

*Photo courtesy of Stockfreeimages.com

Google Loses Patent Infringement Lawsuit

Patent InfringementGoogle recently lost an infringement lawsuit regarding a patent that most people wouldn’t think of as being intellectual property: a filtering technology that generates online advertising based on search terms.

Vringo, Inc. was awarded over $30 million for Google and four co-defendants’ – AOL Inc., IAC/InterActiveCorp, Target Corporation and Gannett Co Inc. – infringements on their patent since September 2011. The jury also ruled that Google must pay Vringo for future infringements until the patent runs out in 2016. According to Vringo’s lead counsel, Jeffery Sherwood, these future royalties could net Vringo $25-30 million per fiscal quarter.

Intellectual property is any creation of the mind, including the algorithms that filter advertising in this case.

If you have an idea or invention, it is a good idea to register it through a copyright, trademark, or one of the other versions of intellectual property protection because an infringement lawsuit cannot be filed unless the intellectual property is registered.

If you have an existing copyright, trademark, etc. that is being infringed upon, you have the right to sue the offending party and receive royalties. (It may not be $30 million, but you will still be paid for your work.)

Whether you are trying to register your intellectual property or trying to protect it through and infringement lawsuit, it is important to find a good intellectual property lawyer to provide expert guidance every step of the way.

Source: Law.com ; Forbes

What is a Living Will?

Competent adults have the right to make decisions regarding their own health, such as the right to choose or refuse medical treatment that may only prolong life. On the other hand, society has interests in the preservation of human life along with the preservation of ethical standards in the medical profession. To protect all of these rights, the Florida Legislature has established a procedure, called a Living Will.

A Living Will is a legal document that allows a person to plan for the case that they become incapacitated with a terminal illness. It also allows for the maker to designate a person, called a Health Care Surrogate, to act on their behalf to make medical decisions in such a situation.

A Living Will should be signed by the maker and two witnesses.

Once you have made a living will, you should notify your physician and local hospital to have it included in your medical records.

Both a Living Will and the Designation of a Health Care Surrogate can be revoked by the maker at any time. The maker can do this by a signed and dated letter of revocation, by physically canceling or destroying the original document, by an oral expression of one’s intent to revoke, or through a later executed document that would supersede the first.

If you have questions about Living Wills, Legal Wills, or other Estate Planning needs, contact Boyer Law Firm today.

Source: The Florida Bar

Who controls Intellectual Property in the Workplace?

Intellectual Property   A “work made for hire” is a piece of intellectual property created by an employee or independent contractor of a company in which the rights to the property belong to the company, not the author.

There are many things to consider in regards to this law, the first being whether the author was an employee or an independent contractor.

The Supreme Court tried to define an employee in Community for Creative Non-Violence v. Reed. They determined that an individual was an employee if the employer has control over the individual or their work. An individual may also be considered an employee depending on the status of the relationship, such as if the employer withholds taxes from the individual or provides them with benefits.

If the individual is considered an employee and the work was created within the scope of their employment (not on their free time), the rights of the intellectual property belong to the employer.

If the individual is an independent contractor, the rules get more complicated. According to U.S. Copyright Law, a work created by an individual contractor belongs to the company if the work was specially ordered by the company or if the work was commissioned for use as:

– A contribution to a collective work
– Part of a motion picture or other audio-visual work
– A translation
– A supplementary work
– A compilation
– An instructional text
– A test
– Answer material for a test
– An atlas

The work is also the property of the company if the parties expressly agree in a signed written contract that the work will be a work made for hire.

Source: U.S. Copyright Office

Photo courtesy of Stockfreeimages.com

Digital Assets Are Part of Florida Estate Planning

Digital Assets are Part of Estate PlanningWhen most people think of Estate planning, they think of packing up a house and dividing assets such as jewelry, baseball cards, and family heirlooms. These are all important things to think about, but in today’s age of technology, there is a whole other area of assets to include in your estate plan: Digital Assets.

Digital Assets include:

–          Usernames and Passwords (Including cell phone passwords)

–          Online bank, investment, brokerage, credit card, loan and insurance accounts.

–          Online retirement plans and stock options

–          Online bill payments

–          Social Media accounts (Facebook, Twitter)

–          Online retail accounts (E-bay, Netflix, iTunes)

–          Blogs, websites, domain names

–          Photo-hosting accounts (PhotoBucket, Flickr)

–          Emails

–          Online Payment accounts (PayPal)

–          Airline or other sites that offer rewards such as frequent flyer miles

–          Online gaming accounts (People build up characters, and many items accumulated during the process, such as a sword, can sell on E-bay for large amounts of money.)

–          Finished or unfinished intellectual property (such a book)

–          “Digital Wallet” products (Starbucks app that allows you to pre-pay for your coffee)

The list goes on if you own a small business.

Digital assets are a fairly new aspect of estate planning, and, as a result, many of the laws can be confusing and vary by state. For example, Yahoo references in their terms of service “no right of survivorship and non-transferability,” meaning Yahoo will not give out the account holder’s password or other information in the case of their death. This can make accessing other digital assets difficult because email accounts often allow access to other online services. (Ex: Forgot your password? We’ll send you an email.)

When planning your estate, be sure to speak with your lawyer about your digital assets. As technology increases, digital assets are becoming increasingly valuable and important.

*Photo courtesy of Stockfreeimages.com

Great Real Estate Investment: A Shopping Center or Strip Mall

Shopping centers and strip malls are a great real estate investment because they give the investor the opportunity to make a large profit.

Unlike many investments, such as apartment complexes or condominiums, investors will rarely need to be concerned with tenant abuse; these tenants are also in business to make a profit, so it is in their best interest to maintain the property to the best of their abilities.

When looking for a property to invest in, follow these tips to increase your potential profit:Great Real Estate Investment

–  Location, Location, Location!

  • Make sure the property has high-visibility from busy roads.
  • Make sure the property is easily accessible.
  • Try to avoid areas where there is a lot of construction, as they may be subject to road blocks and other diversions.

–  Make sure there is well-lit parking, and lots of it!

–  Diversify the businesses located in the property.

  • Try to rent to at least one store that appeals to a wide variety of clientele (Ex: clothing store, grocery store, etc.)
  • Choose a property that can hold multiple tenants. (This will allow for less profit loss if one of the stores is vacant.)

Shopping centers can be purchased by an individual or by a group of business associates. Foreign investors can additionally benefit by obtaining a U.S. investor visa.

*Image courtesy of stockfreeimages.com

Domestication of Foreign Judgments in Florida

If you have an uncollected foreign judgment in your favor (from another state or another country) and the defendant is a person who resides in Florida or a company that is domiciled in Florida, there are ways you may still collect the money owed to you.

Under the Florida Domestication of Foreign Judgments Act, a judgment issued in another state can be domesticated in a Florida county court. This means the Florida court recognizes and can enforce the judgment.

Domestication of Foreign JudgmentsWhen the judgment has been issued by a foreign country, it can be domesticated under Florida‘s Uniform Out-of-country Foreign Money-Judgment Recognition Act. In order to be eligible for domestication, the judgment must be final and enforceable in the country where it was issued. The judgment may not be enforceable if certain instances occurred, such as if the court was not impartial, did not adhere to due process, or did not have jurisdiction over the case.

The Plaintiff or Plaintiff’s counsel must file a certified copy of the judgment and an affidavit with the county clerk of courts. The clerk will file and record the judgment and affidavit in the public record, and then they will mail a notice to the defendant. The defendant then has 30 days to respond if they wish to file an action challenging the validity of the judgment.

If no objection to the judgment is filed, it is treated the same way as if the judgment was made in a Florida court. Then the courts can place liens on any real property located in the county of recording.

*Image courtesy of stockfreeimages.com

 

Sarah Gulati, Esq., has left our Firm

Sarah Gulati, Esq., has left our firm for personal reasons and relocated to another city. She will be greatly missed, and we appreciate all that she has done for our firm.

If Miss Gulati was your primary contact, your new primary contact will be Mr. Francis Boyer, but, of course, the rest of us here at the firm will be glad to assist you in any way we can.

If you have any questions or concerns regarding this matter, please do not hesitate to contact us.

Please join us in wishing Miss Gulati the best of luck in her future endeavors.