Articles Posted in Civil Litigation

To answer the above question, the reader should first review Florida Statute 48.193, which is titled “Acts subjecting persons to jurisdiction of the Courts of this state.”  The elements required for pleading a civil conspiracy in Florida are (1) a conspiracy between two or more parties, (2) to do an unlawful act or to do a lawful act by unlawful means, (3) the doing of some overt act in furtherance of the conspiracy, and (4) damage to the plaintiff as a result of the acts, performed in furtherance of the conspiracy. Under Florida law, civil conspiracy is a derivative of the underlying claims which form the basis of the conspiracy. The gist of a civil conspiracy is not the conspiracy itself but the civil wrong which is done through the conspiracy which results in injury to the Plaintiff. There is no independent action for civil conspiracy. Thus, generally an actionable conspiracy requires an actionable underlying tort or wrong. An act which does not constitute a basis for a cause of action against one person cannot be made the basis for a civil action for conspiracy. However, there is an exception to the rule where the plaintiff can show some peculiar power of coercion posses by the conspirators by virtue of their combination, which power an individual would not possess.

For purposes of this discussion, we will assume that the elements set forth above to allege a civil conspiracy exist.  A series of Florida cases have found personal jurisdiction over non-resident defendants engaged in conspiracies that include tortious or statutorily-prohibited actions as against Florida residents.  For example, telephonic, electronic or written communications into Florida, by a non-resident, may form the basis for personal jurisdiction if the alleged cause of action arises from the communications.  In addressing allegations that a non-resident defendant committed a tort in Florida though acts and communications directed into the state from outside of Florida, the appropriate inquiry is whether the tort as alleged occurred in Florida and not whether the alleged tort actually occurred.

As can be seen from the above discussion, it is important to examine all of the facts underlying the cause of action alleged as to each defendant.  When dealing with a non-resident defendant, it is especially important to allege, in the complaint, all of the specific acts, of the non-resident defendant, that were committed in furtherance of the conspiracy so that the court may properly determine the issue of jurisdiction.

The Florida Uniform Fraudulent Transfer Act – How Can the Act Help You in Collecting on Your Judgment – South and Central Florida Judgment (Including Out-of-State Judgments) Collection Attorney.

The Florida Uniform Fraudulent Transfer Act (“FUFTA”) is contained in Florida Statute §§ 726.101 – 201  FUFTA  provides creditors (judgment holders) with various forms of relief to avoid a debtor’s (defendant’s) fraudulent transfer of assets or funds.  A creditor (a plaintiff) may avoid a debtor’s transfer where the creditor shows that the transfer was made with actual intent to hinder, delay, or defraud.  To that end, FUFTA provides a non-exhaustive litany of factors – referred to as “badges of fraud” – to consider when determining whether a debtor’s transfer is fraudulent as to the creditor:

  1.   The transfer or obligation was to an insider.

To establish a joint venture in Florida, the written contract must contain the following five elements: (1) a community of interest in the performance of a common purpose, (2) joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the profits and (5) a duty to share in any losses which may be sustained.  Absence of one element precludes the finding of a joint venture.

A party asserting that an unwritten, implied contract is the basis of a joint venture faces a heavy and difficult burden, as it must allege and prove that the implied contract contains the same five elements required of a joint venture based on a written contract.

If these five elements exist, joint venturers owe each other a duty of loyalty, breach of which gives rise to a claim for breach of fiduciary duty.

The elements required for pleading a civil conspiracy in Florida are (1) a conspiracy between two or more parties, (2) to do an unlawful act or to do a lawful act by unlawful means, (3) the doing of some overt act in furtherance of the conspiracy, and (4) damage to the plaintiff as a result of the acts, performed in furtherance of the conspiracy.  Under Florida law, civil conspiracy is a derivative of the underlying claims which form the basis of the conspiracy.  The gist of a civil conspiracy is not the conspiracy itself but the civil wrong which is done through the conspiracy which results in injury to the Plaintiff.  There is no independent action for civil conspiracy.  Thus, generally an actionable conspiracy requires an actionable underlying tort or wrong.  An act which does not constitute a basis for a cause of action against one person cannot be made the basis for a civil action for conspiracy.  However, there is an exception to the rule where the plaintiff can show some peculiar power of coercion posses by the conspirators by virtue of their combination, which power an individual would not possess.

Please keep in mind that the above information is being provided for educational purposes only.  It is not intended to be complete in all material respects.  If you have any questions concerning the contents of the post, you should contact qualified counsel.

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The Securities and Exchange Commission recently announced that it has filed an emergency action  and obtained a temporary restraining order and asset freeze against two individuals and two companies they control in connection with an alleged $6 million Ponzi scheme that defrauded at least 55 investors, many of whom are senior citizens or small business owners.

According to the SEC’s complaint, Neil Burkholz of Boca Raton, Florida, and Frank Bianco, of Pembroke Pines, Florida, through their companies Palm Financial Management LLC and Shore Management Systems LLC, solicited investors by falsely representing that their proprietary options trading strategies were highly profitable. In reality, as alleged in the complaint, defendants invested less than half of investor funds, and those investments resulted in near-total losses. The complaint alleges that defendants misappropriated the remaining funds by using them to repay other investors and by transferring approximately $880,000 of investor funds to themselves and their spouses for personal use. According to the SEC’s complaint, the defendants sent false reports to investors to conceal their fraudulent conduct and give the investors the false impression they were generating positive returns.

The SEC’s complaint, filed in federal court in Miami, Florida on Nov. 14, and unsealed Monday, Nov. 18, charges the defendants with securities fraud and seeks certain emergency relief, as well as permanent injunctions, return of allegedly ill-gotten gains with prejudgment interest, and civil penalties. The complaint names Burkholz’s wife, Rhoda Burkholz, and Bianco’s wife, Suzanne Bianco, as relief defendants.

True investment advisers have fiduciary obligations that they owe to their clients.  As such, they have an obligation to make full and fair disclosure to clients and prospective clients concerning their material conflicts of interest, including conflicts arising from financial incentives, and to act consistently with those disclosures. This principle is reflected in Form ADV, which reminds advisers of their general obligation to fully disclose material facts relating to their advisory business and specifically requires disclosure concerning the compensation and fees that advisers and their supervised persons receive, including from asset-based charges and service fees.

The chance of a conflict of interest arising increases based upon the number of rolls that a professional assumes in dealing with a client. This is especially true for attorneys. Some attorneys attempt to provide estate and tax planning advice to clients and then offer investments to those clients through broker/dealer or investment advisory firms with which they are associated.  When does the attorney’s legal advice end and his investment activities commence?  This is a question that is difficult to answer. Every factual situation will be different.  If you have any questions concerning an investment that you have made based upon the recommendation of your attorney/advisor, please feel free to contact us.

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A Pure Bill of Discovery is an equity pleading which is granted pursuant to the Court’s auxiliary jurisdiction.  A Court’s jurisdiction usually consists of the right to decide a case or controversy between parties;  however, Florida Courts, also have the auxiliary power and jurisdiction to enter orders that a person or organization provide documents, submit to depositions or to otherwise comply with the Florida Rules of Civil Procedure presuit.  A Pure Bill of Discovery can be utilized for a number of reasons.  For example, in a recently filed case a company had its computer system hacked.  Someone, then currently unknow, was able to access the company’s bank account electronically and directed the company’s bank to send two wire transfers to two seperate bank account created, by unknown parties, at a nationwide banking institution.  Both the company’s bank and the bank that received the funds into these third party accounts refused to provide, to the company, any of the written communications between the banks relative to this matter and the receiving bank has refused to provide any information to the company about who ownes the accounts that received the funds.  Hence, the necessity of filing a Pure Bill of Discovery so that this information can be discovered and acted upon by the company.  Obviously, time is of the essence in this type of circumstance.

A suit for discovery is initiated by a party filiing a “Complaint For Pure Bill Of Discovery” with either the county or circuit court as appropriate.  The complaint should allege the following: (1) the matters concerning which the discovery asked for is sought; (2) the interests of the several parties in the subject of the inquiry; (3) the complainant’s right to have the relief prayed, its title and interest and what the relationship of the same is to the discovery claimed and that the discovery so attempted to be had is material to the complainant’s rightss that have been duly brought into litigation on the common-law side of the couurt under circumstnaces that entitle the complainant to a disclosure of what is necessary to maintain its own claim in that litigation, and not that of the defendant in the case.  If the Complaint is granted, then the plaintiff, in this case the comapny, can ask the court for leave to conduct discovery using any of the methods allowed by the Florida Rules of Civil Procedure.

Please keep in mind that the above information is being provided for educational purposes only.  It is not designed to be complete in all material respects.  If you have any questions concerning the contents of this post you should contact a qualified professional. 

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