Transition by McCabe Harrison

           After meeting with the other partners of Ossi, Withers & Harrison, I decided to switch roles from being a partner at the firm to an “of counsel” attorney.  I found that focusing on the business matters required of a partner was taking me away from the legal work that is my passion, and Susan Ossi and Richard Withers were willing to accommodate me in this transition.  Susan and Richard are fantastic people and great attorneys, and I was proud to be partnered with them for the last eighteen months. 

            As a practical matter, absolutely nothing will change for clients and for my colleagues in related professions.  I’ll still be working for Ossi, Withers & Harrison full time like I always have, and intend to stay here long term.  Our firm name will remain the same for the time being, but if you see it change, don’t worry—I’ll still be here.

Estate Planning for Traditional and Non-Traditional Family Situations

Choosing who should inherit your wealth after you die can sometimes be an emotional process.  Many people come from families where their parents are divorced, or may be divorced themselves.  Not to mention that people often remarry someone that already has kids from a previous marriage, have children with their new spouse, or both.  How should you go about setting up your estate plan, and what kinds of things should you be thinking about when choosing who should get what, after you die?  A recent New York Times article (“How a Will Treating Children Differently Can Still Be Fair” by Paul Sullivan-see link below) examined how differing family situations can potentially be reasons to change your estate plan from treating all of your children equally to changing the proportionate share each child will receive when you die.  The article notes that even when parents try to treat children equally through their wills or trusts, they sometimes forget that other assets, such as retirement accounts or bank accounts that transfer on death to someone, will transfer to beneficiaries automatically.  Forgetting to take into account retirement accounts or other investment accounts can significantly alter the percentages of your estate that each of your children ultimately will receive.

Additionally, different states have different laws that govern who will receive your estate if you have children from a prior marriage and are married to a new spouse at the time of your death (if you die without an estate plan or forget to plan for some assets in your current estate plan).  While that is a somewhat common potential issue that clients may have, that is just one of many friction-causing situations between surviving family members that can be avoided by drafting a will or trust.  Avoiding potential conflicts between family members after your death is merely one of the many reasons to review your current estate plan with a skilled estate planning attorney.  

If you think that you need to have your estate plan reviewed, or need help setting up an estate plan, we have skilled attorneys who can assist you.  Whether it’s a relatively straightforward issue or an incredibly complicated one, we would love to sit down and figure out what we can do to help you have an estate plan that fits your goals.

 

Check out Paul Sullivan’s New Your Times Article Here: http://www.nytimes.com/2016/07/30/your-money/how-a-will-treating-children-differently-can-still-be-fair.html

Being Made Whole: Do You Have a Right to Recover Attorney’s Fees Incurred in Winning Your Case?

As a litigator who handles disputes over property, money, inheritances, and business, I often encounter clients who come into my office with the mistaken belief that they will automatically recover their attorneys’ fees if they win their case. A common misconception of the law among non-lawyers is that the losing party has to pay the winning party’s attorneys’ fees.  Unfortunately, the right to recover attorneys’ fees is the exception and not the rule.  

Generally speaking, the winner can only recover attorneys’ fees if the right to recover fees is provided for by a statute or contract.   This can be difficult for clients to understand, as they often hear that the purpose of the civil courts is to make a wronged party “whole.” 

Now that you know that the recovery of attorneys’ fees is the exception and not the rule, how can you better protect yourself now and in the event of a dispute?  If you are a business owner or professional who provides goods or services, one way to be proactive in protecting yourself is to ensure that all of your contracts contain a prevailing party attorney provision.  The wording of these provisions is critical, as there are instances where the courts have found no right to recover fees despite the existence of contractual language that appears to provide for as much.  For example, courts have found that the contractual right to recover “legal costs” does not include the right to recover attorneys’ fees. 

If you are already in a dispute and are not certain whether you have the right to recover your attorneys’ fees if you win, we are glad to consult with you about your case.  There are many Florida and federal statutes that provide for the recovery of attorneys’ fees in myriad situations.  For example, there is a right to recover attorneys’ fees in consumer warranty claims under a federal statute even if the case is brought in state court, and a Florida statute allows for recovery attorneys’ fees arising from deceptive and unfair trade practices.  There are also Florida statutes which allow for attorneys’ fees to be recovered based on a party’s conduct in litigation, including as sanctions for bringing a frivolous claim or defense or for a party’s refusal to accept a reasonable settlement offer if the judgment obtained by the winner ultimately “beats” that offer by a certain amount.

One of the first things I discuss with my clients is whether they have the right to recover attorneys’ fees, as that can factor into the strategy of how to approach a case.  If a client does not have a contractual or statutory right to recover attorneys’ fees, we always need to consider whether the client is likely to spend more litigating a case than she stands to recover.  In this situation, it may not make sense for the client to “throw good money after bad.”  

Whether you are uncertain of your rights under your existing contracts (or worse yet, you are doing business without contracts) or you are in a dispute, we can help you determine and advocate for your rights.  Please contact us to set up a consultation.

Receding from the Economic Loss Rule: How a Major Shift in Contract and Tort Law Could Affect You

    For decades, Florida courts applied a rule that prohibited plaintiffs from recovering damages for economic losses where there existed a contract between the plaintiff and defendant.  The economic loss rule arose in the products-liability context to protect manufacturers from liability for economic damages caused by a defective product beyond those damages contemplated under the product’s warranty.  Over the years, the rule was expanded to eliminate torts for purely economic losses where the parties were in contractual privity.  The rule became so broad that it was frequently applied by courts to dismiss claims so long as a contract covering the same general subject matter existed, without much regard to the actual intellectual underpinnings of the rule.  This drastically changed in 2013, when the Florida Supreme Court receded from prior precedent by limiting the economic loss rule to the products-liability context.  Whether you are a consumer or a business-owner, this change in the law could impact you.

A general understanding of contract and tort law is essential to understanding the economic loss rule.  For the uninitiated, a tort is a civil wrong.  Examples include negligence or fraud.  The law treats torts differently from breaches of contract.  A tort claim is generally based on the breach of a common law or statutory duty owed by the defendant to the plaintiff, whereas a breach of contract claim is based on the failure to honor a contractual obligation.  Economic losses are generally defined as “disappointed economic expectations,” as opposed to damages such as physical injury or damage to other property.  The rationale behind the economic loss rule in the context of contract law is that the parties are in contractual privity, and therefore addressed or could have addressed the remedies for any wrong arising from their relationship.  

This rationale caused courts to apply it to bar many tort claims (with some exceptions for torts arising independent of the contract, such as fraudulent inducement).  Plaintiffs would often have their cases dismissed or decided by summary judgment before ever getting their full “day in court.”  The rule was criticized by many lawyers and judges for being too rigid in its application.  
    
In the case Tiara Condominium Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla. 2013), the Florida Supreme Court confronted the “unprincipled expansion” of the economic loss rule.  In its ruling, the Court detailed the history of the rule, emphasizing that the rationale for the rule grew out of the products-liability context and the need to protect manufacturers from purely economic damages not covered by their product warranties.  The Court then addressed its concern that many well-established causes of action, including the claim for professional negligence at issue in Tiara, were being essentially eliminated by the rule.  In what was a landmark decision for plaintiffs all over the state, the Court expressly limited the rule to the products-liability context.

The impact of this ruling is significant for consumers and businesses alike.  For consumers, this may mean that you have the opportunity to claim and recover additional damages in litigation.  For business owners, this change in the law may expose your business to additional liability.  Business owners may be able to contract away some of these risks by having more comprehensive contracts.  The risks which cannot be contracted away can be minimized in ways such as adopting better operating procedures and ensuring optimal insurance coverage.  In addition to protecting the business itself, proper business organization and mindful planning and operation will minimize the exposure of the owners and officers. 

McCabe Harrison gives Estate Planning Seminar at the Village

McCabe Harrison, a member of the Village Foundation Planned Giving Committee, gave a free seminar to residents of the local retirement community on December 8th.  The topic of the presentation was the Top 10 Things You Need to Know to Keep your Will or Trust Up to Date.  McCabe's hope was that residents would be able to go home and analyze their own wills and trusts to spot some of the same potential issues that he looks for when clients come in to see him.  A lucky winner also received a voucher for $500 of free estate planning services.  The Villages was a great host, and McCabe enjoyed speaking to such an attentive audience.