The Law Planet Blog

First: Let’s talk about sexual assault. If you allow anyone to touch a child at your house, you will pay! Not only will the law come down hard on you but juries will too! Last month, a Levy County, Florida jury awarded a boy who was molested at his grandmother’s home by his uncle an award of $26,400,000 against the grandmother! The case was brought as a Negligent Supervision case where that negligent act allowed the intentional tort of sexual assault and sexual battery to occur. Because it was a negligent supervision claim the homeowner (read grandma) must pay the award.

The reason the jury found the grandmother guilty for allowing this heinous crime to go on was because she started babysitting the boy when he was 5 years old in 1999 and her son, the uncle, came over at least 20 times between then and 2003, and sexually assaulted his nephew, the boy in the case. When the boy finally told on the uncle and the legal case began, the uncle committed suicide. Thus he isn’t able to pay anything any longer. The boy’s father sued his mother-in-law saying that she failed to closely watch the boy and should known this was happening. The boy’s older sister even told the grandmother what was happening because she observed the molestation, but the grandmother branded her a liar and refused to investigate.

The boy now has Post-Traumatic Stress Disorder (PTSD) and will need psychological counseling for the remainder of his life. In truth, no one ever really gets over such a violation. According to the boy’s doctors, he is at risk of drug and substance abuse, suicide and other psychiatric maladies throughout his life. He will need to be counseled into having normal relationships with his friends, family and, of course, his wife.

The jury found the grandmother 85% responsible and the father only 15% responsible, so the total award was reduced to only $22,440,000. The way the jury came to such a high number was that they awarded $400,000 for future medical care and $6,000,000 for past pain and suffering, but the bulk of the money, $20 million, was for future pain and suffering damages.

It is important people learn about how such a crime like this can affect their lives.

But, how does this type of case apply to me? It applies when virtually any crime happens in your home. What kind of crime do people let happen in their homes? Underage drinking! Here is a common scenario: A son or daughter returns from college with some friends. They are 20 years old and have been responsibly drinking at college for 2 or 3 years. They sit around at night hanging out and drinking a few beers. Then at the end of the evening they drive home. Not drunk. Just a few beers, mind you. Unfortunately they get into a car accident and hurt someone on the way home. They don’t need to be drunk! If the officer smells alcohol on their breath and asks where they were drinking, YOU are responsible for that accident. You can be arrested for permitting under-age drinking to occur at your house and you can be responsible for all the damages that the accident caused! Sound unfair? Maybe it is, but that is too bad – It’s the law.

Do not allow it to happen. Say no to your kid’s request to be a “cool” parent and allow a “few” beers, or you could buy yourself a huge lawsuit.

More than $100 billion in child support arrearages are owed to parents in the United States. The Federal government has recently launched Project Save Our Children in an attempt to collect this support. Federal agents, including FBI and Interpol are now cooperating in pursuing and tracking down deadbeats. Fleeing a county or state will no longer work as the federal government is now involved.

As a family law attorney, I have successfully pursued collection of more than $200,000 worth of child support arrearages against an heir to the Dodge fortune. He attempted to avoid paying by using a spendthrift clause in the trust that manages this multimillion dollar fortune. Fortunately, that did not work, and he was forced to pay significant penalties, including attorneys’ fees. I have also recently liened a deadbeat’s Palm Beach County personal injury case for the more than $400,000 in support arrearages he refused to pay.

Did you know it is also possible to force a person to sell their Florida homestead protected property, in order to pay support delinquencies? There is solid case law that supports this collection method. A few months ago I was successful in doing just that. I take collection of child support arrearages seriously and am always willing to discuss your case in a free consultation. I work with LaBovick Law Group to successfully assist parents in pursuing child support.

Buggy whips. I think of buggy whips when I hear stories like Kodak filing for bankruptcy. First I think how could this happen? Then I think "Buggy whips." I know that sounds crazy; why would somebody think about buggy whips? But it's pretty appropriate isn't it?

In the 1800s everyone had a buggy whip. You needed them to get your horses to drag around your cart. As the 1900s approach, and Ford and Benz build cars, they became a thing of the past. I wonder what happened to all those buggy whip companies. A few must have been wise enough to get into the automobile industry. Maybe they started creating belt drives or some other thing that would be similar to buggy whip on the new-fangled cars.

Kodak is just a buggy whip company and should serve as a hard lesson to anyone in business. Life moves quickly, and the only thing constant in life is change. If you don't look forward, you will be looking at your company broken and bankrupt, because the world, technology and life have moved past your usefulness.

I hate to say it, but the same is true for lawyers. Lawyers must look to the future, adapt to the new environment and change our business practices if we want to survive.

Those of us who are wise enough to create strong websites, begin client interactions over the Web and save our data in the cloud, MAY survive. Those of us to hang on to the institutional old-world model by setting up large law firms with bloated overheads and white shoe arrogant high-cost lawyers will eventually be a thing of the past.

Lawyering was an interesting profession where we selected few lawyers who knew and understood the law. We were uniquely able to research a legal issue and cogently understand them and then develop legal theories to help clients. Soon that may be done by anyone who can type it into the Google search bar!

If we are not able to adapt to this new environment, we might as well join Kodak in bankruptcy court.

I wish Kodak the best. I nostalgically love the company. It reminds me of photo albums and my childhood. I hope the bankruptcy provides them enough time and releases, and enough capital to turn their substantial investment in new technologies into profitable ventures. Turning the company around is a tricky business, and I know it's one that Kodak has worked hard to achieve. It just seems they figured out they were making buggy whips a little too late.

Recent changes to Florida's laws governing Durable Power of Attorney (DPA) documents might require the documents to be redone and re-signed. Any DPA signed prior to October 1, 2011, might now be stale and unenforceable or unusable. Banks and other institutions using or accepting DPA's are now allowed to reject such if certain requirements are not met. They can even delay the use of the DPA and insist that the user obtain a legal opinion that the DPA is still valid. These new laws allow delay in the enforcement or use of the DPA at the banks discretion.

How many times have we heard that having a DPA is absolutely necessary as part of the will, trust and estate planning a person needs?

With the recent changes in the law, any Florida DPAs signed prior to October 1, 2011 might be rejected as being noncompliant! One of the key changes is that "general" provisions are no longer valid. The powers given to the recipient must be specifically stated in the body of the DPA. Imagine trying to fix this problem after the fact when you're trying to use the DPA for an emergency!

The creation of wills, trusts, living wills, medical care and healthcare, surrogate appointments, and other similar paperwork is part of the family law practice of LaBovick Law Group. Persons wishing to have their documents reviewed can contact our offices for a free consultation.

I can't count the number of times I have been called into a case to fix problems occurring because people tried to represent themselves. Although the Florida Supreme Court created forms to make divorces easier and more accessible, knowing what to do with those forms is more important than creating or filling them out. Currently, the filing fee for divorces is $409 with another $10 fee for issuance of a summons. The summons eventually has to be served on the other party. Most people don't know how to do that.

I was in front of a Palm Beach County divorce judge yesterday and heard a comment that almost 70% of all pending divorces involve people trying to do it themselves. The judicial system was not funded or designed to handle people trying to do their own complicated legal work. Having a lawyer means not only protecting your rights and those of your children but also having someone who knows how to complete divorces quickly. Most divorces done by people representing themselves take more than a year to complete. Only a few hearing days per month are reserved for cases without lawyers. That means there are 10,000 cases competing for 2 days of hearing time each month. It doesn't take much calculating to figure out that some cases can take several years to be finished when neither party knows what to do.

Most uncomplicated cases can be resolved for less than $2,000. Getting divorced quickly and properly would seem to make it worthwhile for people to go this route. In most circumstances, we use forms and don't charge clients to reinvent the wheel. I give free consultations over the phone and will accept retainers by credit card. If you are interested in getting your divorce done quickly and properly, give me a call: Joseph Fields, Esq., Attorney for LaBovick Law Group.

Hostess Brands Inc, the father of Twinkies, Wonder Bread and HoHos, is again preparing to file for Chapter 11 bankruptcy protection this week, The Wall Street Journal reported.

Twinkies ingredients have been the same for nearly 80 years, and although this is the second company restructuring, experts say the king of cakes won't disappear.

For more commentary and full news story:
Twinkie alert! Hostess may again file bankruptcy

Oh, how the Twinkie has fallen: Reflections of an ex-Twinkie tester

In a case of first impression for the state of Florida, the 5th District Court of Appeal recently issued its opinion regarding parenting rights of same-sex couples. This opinion, subject to review by the Florida Supreme Court, establishes the rights of same-sex couples when involved in a dispute over a child they intended to raise as parents. Regardless of the characterization of the parents, when two persons in a committed relationship make arrangements to become the parents of a child, one of the persons does not have the right to walk away from the arrangement and deprive the other of those rights.

In this case, the non-genetic mother who gave birth to the child left the country and moved to Australia, attempting to prevent the egg-donating mother from having any parental rights. The 5th DCA admirably stood up for the rights of "parenthood" and did not focus on the same-sex issue. This opinion is in line with the recently blogged California case in which the concept of "presumed parent" came up. It is likely that the trial judge in the Florida case will follow the "presumed parent" concept and order joint custody and time-sharing of this child.

Those persons wishing to explore their rights under these cases should call Attorney Joseph R. Fields, Jr., Esq. for a free consultation. The sexual orientation of a parent has nothing to do with that person's abilities to raise a child. LaBovick Law Group supports the rights of all parents to assist and participate in the raising of their children.

Have you recently opened an envelope from a law firm requesting that you immediately cease and desist using their client’s trade name or trademark? Trust me, this happens more frequently than you could imagine. Here are a few key tips you should consider in evaluating whether the law firm has a good or bad case against you and your business:

First of all, keep in mind that in Florida generic, geographic or descriptive trade names are not protected. Examples of generic words include car, boat, house or gun. Geographic words include coast, north or mountains. While descriptive words include long, red or strong. These types of words will always be available for use by the general public in most situations. Conversely, words that require the public to use their imagination in determining what product is being offered is generally going to receive protection from other companies use of the word or words. For example, Polaroid and Kodak require the public to think about the product actually being offered. Kleenex is another example that requires the public to think about the product actually being offered, which is a tissue.

Finally, how close is your business to the other business that is asking you and your company to cease from operating? Is it within the so called “territorial scope” of the other business? Keep in mind that the territorial scope varies depending on the product or service the other company offers. If it sells fast food, the territorial scope will be far less than a company that builds nuclear power plants.

Hopefully, this sheds some light on your questions regarding whether you should be alarmed by the cease and desist letter you just received. If you’re still concerned, please feel free to contact Scott Haft, Esq. at LaBovick Law Group for a free consultation.

An Iowa Federal Judge spent the Christmas holidays deciding an ADA lawsuit filed against the Iowa city of Aurelia by James Sak, a retired Chicago police officer who is disabled as a result of a stroke. Aurelia has a city ordinance forbidding pit bulls from the city. Sak has a specially trained pit bull service animal (Snickers) to assist him. The decision, although a preliminary injunction only, granted Sak and Snickers protection from enforcement of the ordinance. Snickers had no history of ever having been aggressive. The dog was specially trained to assist Sak in day-to-day activities and dealing with tremors Sak suffers as a result of the stroke. Given the City presented no evidence that Snickers was a danger to anybody, Judge Bennett issued a preliminary injunction forbidding the City from enforcing its ordinance against him. In essence, the ADA trumps local rules against specific breeds of dog.

It is likely this case will be resolved on a permanent basis given the language of the opinion. The memorandum opinion starts off with several remarkable quotes, one of which is "When a man's best friend is his dog, that dog has a problem." and concludes with "This is one small, but vital step for Sak, one giant leap for pit bull service dogs.

Many municipalities and counties have ordinances similar to the one at issue in this case. This case demonstrates that persons with disabilities have the ability to insist on using the service animal that was trained to meet their needs. Litigation and decisions such as this are exactly why the ADA was created.

LaBovick Law Group supports the needs of all persons, and Attorney Joseph R. Fields, Jr., Esq. is one of the preeminent ADA litigators in the nation, having testified before Congress as to these laws. More information on his practice and experiences can be found at LaBovick.com. Attorney Fields is available for free consultations to discuss the legal needs and concerns of all clients with disabilities.

Full Article: Despite pit bull ban, man reunited with service dog
(image courtesy of animal farm foundation)

A recent California Court of Appeal decision has established the concept of "presumed parent" for persons who have an established relationship with a partner and has developed a parental relationship with that partner’s children. Although this decision involves a same-sex couple with only one of the couples having legal and established parental rights, it appears to open the door to other relationships in which opposite sex partners are in the same situation. This California Court of Appeal decision is not binding in any fashion in Florida courts, but it could be helpful in arguing that a non-married partner of a person who has children has the right to try to establish the necessary elements to show that such person should be a "presumed parent" for purposes of continuing contact, visitation or time sharing with those children.

There have been numerous instances (usually arising from a vindictive ex) in which children have been stripped from their established, long-term relationships with persons who the children had historically deemed to be a "parent.” This should not be allowed to happen in any state. What happened to the rights of children to live stress free and have relationships with those persons they deem to be parents? This is a new arena in the Florida court system, one that has not yet been fully tested. However, for persons who are in this situation, perhaps now is the time to assert this issue and claim entitlement to continuing contact, visitation or time sharing with children that they have been involved in raising.

LaBovick Law Group considers the rights of same-sex parents and opposite sex parents to being equal. Parents are parents regardless of orientation. The issue should be in proving the relationship, not some technicality that harms a child's development and results in children being forcibly kept from persons they have historically had parental relationships with.

For more information, visit us at www.LaBovick.com or call us toll free at 1-888-777-3884.

Article Reference: Mother’s same-sex partner is presumed parent

A very small bank that boasted on not accepting Troubled Asset Relief Program (TARP) funds, and proclaiming how healthy they were financially, was absolutely dead set on not giving our client a break and gave us a spectacular mortgage modification!

The bank was not willing to budge whatsoever. It was a bleak scene, picking apart where the clients spent money, their priorities in life, what they did to protect themselves from their hardship they endured, etc. In the first half hour, it was determined that the bank was going to ultimately seize the property through foreclosure.

This is what sets the LaBovick Consumer and Financial Services division apart from other financial law firms. Our dedicated team is both knowledgeable and fierce when it comes to our client's well being on this very delicate, emotionally-charged issue.

We knew exactly what direction the bank was heading in this case, and it was nowhere good...

Negotiating at mediation takes a bit of pizzazz. Typically, banks are not willing to come to terms even though the program was set up by a team of judges to be the end of the modification nightmare. The ratio of mediation conferences that do not settle at an impasse are slim to none (This means that a decision of modification terms has not come to pass.).

Ironically, the very first statement made by the bank is that they "have the ability to make a decision right then and there.” This has been historically proven as untrue!

Is the mediation program working? It certainly is for many! With our mortgage modification team and cunning expertise, we managed to sink our teeth into the bank and save our client hundreds of dollars a month – not to mention we brought this foreclosure to a halt.

It was an arduous task and took a long time to accomplish. At the end, we left victorious with terms in hand and an "atta boy" from the mediator, who commented on how strong our team was.

This is a step in the right direction for all homeowners in this tough economy.

LaBovick Law Group is dedicated and completely grizzly when going up against these banks that have zero heart in this foreclosure fight. If you have any questions regarding foreclosure defense, mortgage modification or short sales, please don’t hesitate to contact us today.

LaBovick Law Group filed a Florida lawsuit on behalf of a paraplegic plaintiff, alleging the transportation giant Greyhound Lines was negligent in complying with American Disabilities Act standards when she fractured her leg on a Greyhound bus in March.

Full Press Release: Paralyzed Woman Sues Greyhound Lines for Two Counts of Negligence