As business lawyers here at Loshak Law PLLC, we always strive to do the best for our clients – so we are always frustrated when a client comes to us after it’s too late, when the problem could have been cheaply and easily avoided. For example, clients sometimes come to us in the wake of failed contract negotiations or after they’ve already agreed to terms that aren’t necessarily in their best interest. Then, it’s up to us to apply lipstick to a proverbial pig – and as the saying goes, it’s difficult, if not impossible.

So here’s something to think about. Rather than picking up the pieces after the fact, we can negotiate the best terms for you from the beginning. We also have the skills and experience necessary to ensure the contract is properly written. Here’s why this option is worthwhile.

As South Florida attorneys we are held to strict standards of conduct

In accordance with the Florida Rules of Professional Conduct, along with the rules of judicial administration, and the American Bar Association’s model rules, attorneys must abide by strict rules when negotiating contracts on behalf of their clients.

We must be able to demonstrate competence. In other words, we must have the relevant skills and abilities required to represent you in this context.
We must be completely honest with you and in court.
We must engage in “zealous representation.” This means we must aggressively fight for you in the negotiation process.
We must keep you fully apprised of any progress and pitfalls throughout the negotiations; and respond promptly to any requests for information.

We risk being sanctioned and facing other serious consequences if we don’t abide by these rules. But just as importantly – if not more so – we risk disappointing you.

Dotting the “I”s and crossing the “T”s

With that in mind, we’ll also review any contract you’ve drafted to make sure you haven’t made any little mistakes that can cause big headaches.

Specifically, we’ll make sure the proper parties are identified to avoid any potential confusion, help draft appropriate contract provisions, ensure our client’s objectives are met, and make sure you’re protected in case of a breach of contract.

We’ll also review the contract to ensure that it:

includes all relevant recitals, facts, and details;
is equitable in nature;
clearly identifies the roles & responsibilities of the parties;
includes terms and contingencies that address unexpected complications;
includes “Choice of Law” and other necessary provisions;
protects our clients to the highest extent possible.

Finally, we’ll also take the time to answer all of your questions before you sign anything. That way you can be confident that you aren’t entering into an arrangement that you don’t feel comfortable with.

In summary, retaining our business attorneys to negotiate, write, and review your contract will save you time, money and aggravation in the long run. Don’t leave anything to chance, contact us here or call our office at (954) 334-1122 to learn more about how we can help you today.

In theory, doing business in South Florida should be simple. You provide a product or service to a customer – and then you get paid. In reality, it’s not that easy. So what can you do as a business owner when you fulfill your end of the bargain but your customers doesn’t pay? Keep reading to find out.

Is it really worthwhile?

Before you do anything else, talk to your lawyer about whether taking formal action against your customer is really worthwhile. If the cost of litigation is significantly greater than the amount owed, you may want to think twice. You may also want to consider other options if your customer is unable or unlikely to pay up due to overwhelming financial distress.

Your attorney and qualified financial professionals can help you calculate how much an individual or business owes you by reviewing unpaid bills and any other relevant material. They can also evaluate your customer’s financial situation based on:

The value of “fixed assets” that they have such as vehicles, equipment, machinery, and so forth;
How much cash they have on hand;
Available inventory;
Real estate holdings;
Corporate holdings;
Money owed and received; and
Outstanding debts/liabilities.

Based on their findings, your lawyer will provide the information you need to make an informed decision.

Giving the customer one last chance

If you decide to proceed, your lawyer will draft a document called a formal or final demand for payment. Although the contents are partially based on your unique circumstances, there is also generic language that must be included. It explains:

Why the customer must pay;
How much is owed;
The deadline for remittance of all past due payments; and
Legal consequences for failure to comply.

Assuming the customer refuses to meet the specified deadline, you can seek the legal intervention stipulated in the demand letter.

Resolution of the matter in small claims court

One option if the customer doesn’t owe you a lot is to seek resolution of the matter through small claims court. In many ways, this is much easier than taking the dispute to a civil trial court. For one thing, it is less intimidating. Secondly, you don’t necessarily need a lawyer. Finally, the judgment is usually rendered quickly and rights to appeal are generally restricted.

In Florida, you can only pursue legal recourse in small claims court under certain circumstances. Specifically, you must be at least 18 and the amount you are trying to recover cannot be greater than $8,000.

Resolution of the matter in civil trial court

A civil trial court is the appropriate forum if the customer owes you more than $8,000.

While you can also represent yourself in this setting, there are a few things to keep in mind. First, this is a much more formal setting, where there are specific rules dictating how your case is presented. Failure to present your case properly can have costly and unpleasant consequences. In fact it may keep you from recovering the money owed.

In one documented case, the business trying to recoup outstanding debt tried to do so using a legal theory that didn’t apply to the circumstances of the case. Although the plaintiff prevailed at trial, the 4th District Court of Appeal ruled against the business and directed the trial court to find for the defendants.

More importantly, if you file the lawsuit in the name of the business, rather than yourself individually, Florida law mandates that you be represented by an attorney. Accordingly, it is always prudent to consult an attorney with experience in business or contract law before pursuing any legal action on your own. If you win the lawsuit, you may even be entitled to recoup any attorney’s fees and costs spent in litigation.

If you’re not being paid, contact us for help recovering money owed

If you operate a business in Miami, Fort Lauderdale, or the Palm Beaches and you are struggling to recover payment for services rendered, the legal team at Loshak Law PLLC can quickly identify the best method for resolution. Take the first step towards ending your frustration and getting the money you deserve, now. Simply contact us online or call (954) 334-1122 to schedule your initial consultation today.

There are few legal documents as important as a contract. These binding agreements underpin nearly every part of most industries. From real estate transactions to business financing, the importance of a comprehensive contract cannot be overstated. In fact, writing a meticulously detailed contract is as much an art as it is a measure of your legal professional’s experience. This makes a Florida breach of contract all the more serious.

There are countless reasons a business may breach a contract. We’ll explore some of the more common reasons below, as well as looking at different types of breaches, Florida breach of contract elements, and the statute of limitations on breach of contract lawsuits.

Different Types of Contract Breaches

There are four different types of contract breaches. These are:

Minor Breach (sometimes called a partial breach)
Fundamental Breach (sometimes called an actual or repudiatory breach)
Material Breach
Anticipatory Breach

A minor breach of contract occurs if there is a small deviation from the contract. Despite the “minor” qualifier, a minor Florida breach of contract is still grounds for litigation.

A fundamental breach occurs when there is a “standard” breach from the terms of the contract. If you have a contract for the delivery of goods on Friday, but you do not receive the delivery until the following Monday, then a fundamental breach has occurred.

A material breach occurs when the nature of the breach is so substantial it can absolve the non-breaching party of their duty under the contract. Put another way, a material breach calls into question the existence of the contract to begin with. If you have a contract for the delivery of apples on Friday, but you do not receive the delivery until the following Monday, and it contains bananas rather than apples, then a material breach has occurred.

An anticipatory breach occurs when one party states that they will not uphold their end of the contract. If you have a contract for the delivery of goods on Friday, but you receive a phone call from the supplier on Thursday stating they will not be able to make their delivery, then an anticipatory breach has occurred.

Breach of Contract Elements in Florida

There are three elements to a breach of contract action in Florida. These are:

That a contract existed
That at least one party materially breached the contract
That as a result of the breach, the other party suffered damages

It’s important to pay attention to the second element – that the breach was material in nature and not, for example, minor or fundamental. While plaintiffs in the rest of the country may only need to prove that a breach occurred, plaintiffs in Florida will need to prove that a material breach occurred.

There are five Florida breach of contract elements that must be proven for the plaintiff to receive damages from the defendant. These are:

That a contract existed
That the plaintiff fulfilled their end of the contract
That the necessary conditions existed for the defendant to uphold their end of the contract
That the defendant failed to uphold their end
That the defendant’s failure harmed the plaintiff

If your attorney can prove these elements occurred, then you can expect a successful outcome to your breach of contract lawsuit in Florida.

Statute of Limitations for Breaches of Contract

The Florida statute of limitations for a breach of contract varies depending on the type of contract that was breached. According to Florida Statute § 95.11, the statute of limitations for most contracts is five years. That means you have five years from when the breach occurred to pursue litigation. Contracts involving real property (real estate) have a four-year statute of limitations.

If you have been the victim of a breach of contract in Florida, you should contact an experienced contract attorney as soon as possible. Not only will this help ensure you’re able to file suit within the statute of limitations, but your attorney will be able to answer any questions you have and make sure you pursue the best course of action. Call the attorneys at Loshak Law PLLC today at (954) 334-1122.

No matter what type of business you’re in, and no matter how big or small it is, one thing is for sure – information is one of your most precious commodities. That’s why it’s crucial that you take the right steps to protect it. One of these steps is using a non-circumvention agreement.

Here’s what you should know about this type of agreement and how to use it in your business, whether you’re in Florida or anywhere else.

What is a non-circumvention agreement?

A non-circumvention agreement is a legal document that affords certain protections. As a business owner, you should consider using one if:

You have frequent business dealings with outside entities, contractors or other businesses to generate new opportunities; and/or
You are planning to grow your business and deal with different entities/parties.

In these circumstances, a non-circumvention agreement prevents someone from taking advantage of you by “poaching” contacts or misusing information. Specifically, it keeps them from using information provided in the context of a business transaction and using it to further their own agenda without your permission. For example, it prevents them from sharing your pricing strategy with someone else they want to do business with, and then promising a better price to secure that business.

What Should a Non-Circumvention Agreement Include?

At Loshak Law PLLC, our legal team can help you draft a non-circumvention agreement suited to your specific business needs. However, a non-circumvention agreement for Florida businesses typically includes:

The term of agreement – this details how long the agreement will remain in effect after it’s signed, stipulations pertaining to automatic renewal (if any), and stipulations pertaining to changes in duration (if any).
Stipulations pertaining to contacts – detailing the type of information that parties involved in the transaction should not disclose.
Explanation of fee/commission agreements – this section should be as generic as possible unless you have customary fees for specific services.
Stipulations pertaining to violations – an explanation of the consequences for violating any provisions in the agreement.
Stipulations pertaining to confidentiality – while this is not essential, it can provide additional protection in the event of wrongful disclosure of certain information that has an adverse effect on your business.
Stipulations pertaining to non-disclosure – these are similar to confidentiality provisions. Accordingly, they mandate that people involved in your business dealings don’t share any information about your business, products, services and/or intellectual property without your knowledge and consent.
Statement regarding choice of law – in this section you should indicate that the terms of the agreement comply with applicable Florida laws (and the laws of any other states where you are doing business).
Statement pertaining to attorney fees – this is usually a stipulation that the losing party is responsible for any legal expenses if there is a dispute over the agreement that ends up in court.
Entire agreement provisions – this is where any person or entity associated with participants in the agreement should be identified. Stipulations should be included mandating that agents, contractors, and employees associated with the participants comply with the agreement. Furthermore, all parties involved in the agreement must sign it. Any changes made to the agreement must be made in writing and signed by all parties concerned.

Optional provisions

Keep in mind that your needs may differ significantly from someone else in the same business. Accordingly, it is important to work with qualified Florida lawyers who can help you craft a customized non-circumvention agreement. The legal team at Loshak Law PLLC can provide advice about the benefits of additional provisions for your non-circumvention agreement, and draft an agreement that meets your unique needs. Contact us online or call us at (954) 334-1122 to schedule an initial consultation today.

At Loshak Law PLLC, one of the hallmarks of our practice is that we take the time to help each and every client understand all aspects of their case. In the context of Florida business and contract law, this often means we must explain tricky legal concepts – such as promissory estoppel – in simple terms.

What is promissory estoppel?

Promissory estoppel is a claim made in an effort to make someone keep a promise, even though there isn’t a written or oral contract. Accordingly, a claim for promissory estoppel in Florida can only been made when:

One person makes a statement (verbally or in writing) indicating that they will do something to benefit another person.
The would-be beneficiary relies on and takes certain actions based on the promise.
The would-be beneficiary experiences losses (usually financial) as a result.

Because the losses stem from actions taken based on the belief that a promise will be kept, this is also known as “detrimental reliance.”

Lack of consideration

As we have just noted, promissory estoppel only applies in situations where there is no viable, legally binding contract. In most cases, the lack of a valid contract is attributed to a lack of proper consideration. So what is that?

In this context, consideration is the term used for something that the beneficiary in an agreement commits to doing or providing in exchange for the benefit. For example, consider a written contract signed by “Person A” and “Person B.” In it “Person A” promises a crew from his moving company will come to “Person B’s” residence, where they pack “Person B’s” household goods. “Person A” also promises to have his crew transport “Person B’s” belongings to his new apartment in another part of the state in a specified period. “Person B” agrees to pay “Person A’s” moving company for those services. The payment is the “consideration.”

When there is no proper consideration, a court weighing evidence in a promissory estoppel case will make a determination about detrimental reliance, instead.

A case in point

For further clarification, let’s take a look at the following scenarios.

In December, Jane Doe’s boss says he’s discussed her job performance with upper management and promises her she’ll get a promotion and substantial pay increase effective January 1. Based on his promise, she and her husband decide to try and buy their dream house. So they go ahead and secure a loan based on the promised pay increase, and finalize all of the other financial aspects of the deal. Soon after closing they learn the promotion and raise aren’t forthcoming after all. Now they are stuck in a new house they’ll have trouble affording. The court in this situation could force the company to pay Jane’s salary raise since she relied on the promise to buy the new house.

Of course, there are numerous other circumstances in which promissory estoppel could apply. If you have questions or concerns about this or any related issues, we are here to help. Contact us online or call (954) 334-1122 to speak with an experienced attorney today.

Having a durable power of attorney (POA) can be a valuable legal tool that grants someone you trust the authority to handle your financial affairs. However, circumstances may change, and you may find the need to revoke or terminate a durable power of attorney in Florida. In this blog post, we will explore the necessary steps and Florida statutes involved in revoking a durable power of attorney, ensuring that you are well-informed and empowered to make important legal decisions.

What is a Durable Power of Attorney?
A durable power of attorney is a legal document that grants someone, known as the agent or attorney-in-fact, the authority to act on your behalf in financial matters. It remains in effect even if you become incapacitated, providing a trusted individual with the ability to manage your affairs. However, circumstances may arise where you no longer wish to grant this authority, necessitating the revocation process.

Understanding the Revocation Process:
Revoking a durable power of attorney involves specific steps to ensure the process is legally valid. Here’s a simplified overview of the process:

a. Review the Original Document: Start by reviewing the original durable power of attorney document. Familiarize yourself with the terms, conditions, and any instructions regarding revocation.

b. Draft a Revocation Document: Create a written revocation document that explicitly states your intention to revoke the durable power of attorney. Include your name, the agent’s name, and the date the original power of attorney was executed.

c. Execute the Revocation Document: Sign and date the revocation document in the presence of a notary public. This step ensures the document’s authenticity and makes it legally binding.

d. Notify Relevant Parties: Send copies of the revocation document to the agent, any financial institutions involved, and other relevant parties. This will formally communicate your decision to revoke the durable power of attorney.
Seeking Legal Guidance:Revoking a durable power of attorney is an important legal matter, and it is advisable to seek professional legal counsel to ensure compliance with Florida laws. An attorney experienced in estate planning and elder law can provide personalized advice based on your specific situation.

For more comprehensive information on durable power of attorney, revocation, and other related legal matters, visit www.loshakleach.com. Their website offers valuable resources and expert guidance to help you navigate the complexities of Florida law.

Revoking a durable power of attorney in Florida requires a thoughtful and legally valid process. By understanding the steps involved and familiarizing yourself with relevant Florida statutes, you can confidently take control of your financial affairs. Remember to consult with an attorney to ensure your actions comply with the law and protect your interests

Sole Proprietor vs Independent Contractors

Before we tackle sole proprietorship contracts, we need to define exactly what a sole proprietor is and how it differs from being an independent contractor. While this may seem like a minor distinction, it’s vitally important to set up your business the right way. Success breeds success, so why not start your business on the most successful foot?

Both sole proprietors and independent contractors are single-entity businesses. This means you are self-employed. Sole proprietorships are single-entity businesses that have not registered with Florida’s Division of Corporations. Independent contractors, on the other hand, work for another business entity, though they are not considered an employee. Given the similarities between the two, the debate of sole proprietor vs. independent contractor is a largely tax-based one.

Sole proprietors pay their business income taxes by completing a Schedule C (also known as Form 1040). You’ll also need to fill out a Schedule SE form, which determines Social Security and Medicare taxes. Independent contractors receive their income under something called a 1099-MISC form. They then complete Schedule C and SE forms to pay taxes on their 1099 income.

The Importance of Sole Proprietorship Contracts

Now that we’ve explored the difference between a sole proprietor vs. independent contractor, let’s turn our attention to the importance of sole proprietorship contracts. While all businesses live or die by the strength of their contracts, you want to be especially mindful of your contracts when operating a sole proprietorship.

Sole proprietorships are what are known as “pass-through businesses”. This means that all income passes through the business to the proprietor. So do legal responsibilities. You want to make sure that you won’t be held responsible for anything another business entity might do; so, the question becomes, what type of sole proprietor contracts should you use?

The most common type of contract you’ll use is for clients. If you start a pool cleaning business, for example, you’ll write a contract for every house you service. Sole proprietor contracts for clients should include:

The scope of work – Be as detailed as possible.
Payment and terms of payment – How much will you be paid, when will you be paid, will there be multiple payments, etc.
Terms – When will the contract begin and when will it end?
Termination – How can the contract be terminated? What happens if one party breaches the contract, etc.

Sole Proprietorship and Partner Agreements

As your business grows, you may decide to partner with another business entity (sole proprietor or independent contract). This introduces sole proprietorship and partner agreements to the equation.

A partnership agreement is a verbal or written contract between two or more people who are going into business together. The agreement outlines conditions such as individual work responsibilities, division of revenue and profits, and acceptable business practices. When multiple sole proprietors decide to form a partnership, the idea of sole proprietorship and partnership agreements is born. It’s important to note that while your partnership agreement can be oral, it’s always a smart idea to write it down. This type of written contract will become invaluable should any commercial disputes arise in the future.

Let Loshak Law PLLC Represent Your Florida Business

With over twenty years of combined experience, the corporate and business attorneys at Loshak Law PLLC have a proven track record of success representing Florida businesses. We know what it takes to write secure sole proprietorship contracts and help you realize your business goals. Contact us today at (954) 334-1122 to get started!

Have you ever read the terms and conditions or terms of use on a website? If you haven’t, chances are you are not alone. No one really likes the fine print. In truth, however, the “fine print” is an essential part of most e-commerce or business websites – especially your own. Keep reading to learn why.

What are terms and conditions?

Think of “terms and conditions” or “terms of use,” as the rules governing the use of your website. As such, they serve as invaluable protection for your business and can even help you limit your liability in certain legal actions. In-fact, well-written terms & conditions may also allow you to take legal action against those who violate them.

In this context, there are a couple of things to keep in mind. The first is that you are not legally obligated to include terms of service, terms & condition, or terms of use on your website. The second is – while you can use boiler plate language in this part of your website – we recommend against doing so. The reason is that this language isn’t necessarily specific to the business or even the state where it is located and can therefore create further headaches for business owners. Instead, we recommend using language that is best suited to your business and its unique needs.

Components that may be included in your terms of use

“Terms of Use” may generally include:

Limitations on liability – this is a basic disclaimer indicating that you can’t be held legally responsible for any errors or omissions on your website. If you allow users to post on your site, the language in this section should also shield you from liability for any offensive, vulgar or otherwise inappropriate posts.
Privacy policy – this is the only element that must be included in your terms and conditions, but only when you are collecting any sensitive information from your customers (such as email addresses or credit card information). This explains how the information will or will not be used.
Governing law – this is a simple statement indicating which state laws apply to the use of the site such as: “These terms and conditions are governed by the laws of the United States of America and the laws of the State of Florida.” This is important because these are the laws that will be used in the event of a dispute.

How to create the terms and conditions page for your website

Now that you know what terms and conditions are, and why they are important, you may be wondering how to create this part of your website. Whatever you do, do not “borrow” language from another website. For one thing, by doing so you are engaging in copyright infringement. Secondly, there is no guarantee they will protect your business.

On the other hand, by allowing the business and contract lawyers here at Loshak Law PLLC to draft this language for you, you can be sure that you and your business are fully protected.

You can learn more about this topic and anything else about operating a successful business in Florida by sending us a message online. You can also schedule a consultation with the business lawyers at Loshak Law PLLC today by calling (954) 334-1122.

One of the hallmarks of adulthood is that you willingly do certain things that are good for you even if you don’t really want to – or you don’t even have to. The same can be said about strong leaders and successful entrepreneurs. These men and women are not only willing to take calculated risks, but also to take extra steps to protect and grow their businesses from the beginning. In many cases, this includes creating an operating agreement for a limited liability company (LLC).

An operating agreement is a comprehensive plan made in writing that is approved by all of the LLC members. As such, it specifies the management of business operations and finances. In Florida, having one isn’t mandatory, but it’s certainly a good idea if you want to be successful and avoid disputes. Here’s a quick look at the key benefits of having an operating agreement for your LLC.

Added insurance in case of litigation

One of the single most important benefits of implementing an LLC operating agreement is that it affords valuable protection if your business is sued. It does so by helping the court to recognize that your business meets the legal definition of an LLC and to sustain your limited liability protection as an owner.

This is extremely important if you established your LLC as a single individual, because it allows the court to distinguish your business from a sole proprietorship. As a sole proprietor, you would not have the same protection from liability afforded to an LLC.

Quick resolution of disagreements

Disagreements are bound to occur in any business setting, but if left unchecked, they can easily become costly and time-consuming disputes. Depending on the scope of an LLC operating agreement, it can serve as a useful “dispute resolution tool” in numerous circumstances.

For example, a detailed LLC operating agreement can help address conflicts over:

Management and structure (individual responsibilities)
Ownership (how much of the LLC each member owns)
Profits and losses (how they are allocated and who gets what)
Voting rights (whether votes can be cast according to the number of members or their ownership percentage)
Change in ownership (in the event that a member dies, becomes disabled or simply wants to sell his/her stake in the business)

The ability to take and maintain control of your business

By creating an operating agreement for your LLC, you (and the other members) are establishing control over how you want your business to be operated (ideally from the outset). Once it is in place, you can continue to run the business accordingly as long as you are in compliance with all applicable local, state and federal laws.

Conversely, in the absence of an operating agreement, the rules created by applicable statutes, or the default rules for LLCs of the State kick in. The trouble here is that these are extremely broad and may not meet your company’s unique needs. In Florida, if you operate your LLC without an operating Agreement, you automatically adopt the Florida Revised LLC Act. Creating your own operating agreement, however, allows you to create your own operating rules and supersede the Act.

Validity

In the business world, having an operating agreement for your LLC provides credibility. This in turn creates opportunities that may not have materialized otherwise. For example, you may find it easier to attract investors or secure startup capital. You may also find that it allows you to hire more people because you are able to secure immigration visas.

Take our advice

Now that you know the upside of having an operating agreement for your Florida LLC, you may be tempted to draft an operating agreement on your own. While it is certainly possible to do so, we always recommend consulting with an experienced business attorney before drafting any legal document. While it may seem like a hassle initially, this important step can save you time and money in the long run.

At Loshak Law PLLC, we have a proven track record of helping clients achieve their business goals throughout South Florida and beyond. Contact us online or call us at (954) 334-1122 to learn how we can help you today.

Category: Business