News, Events & Blog
by Keith Hesse | Jul 12, 2019 | Blog, Commercial & Civil Litigation |
The
Americans With Disabilities Act (“ADA”) was enacted in 1990 to prohibit
discrimination against individuals with disabilities in all areas of public
life, including in employment, schools, transportation and all public places
and private places that are open to the public.
Title III of the ADA regulates public accommodations and services
operated by private entities, and is the basis for a new wave of “website
accessibility” claims.
ADA public accommodation accessibility claims
Traditionally, public accommodation accessibility claims involved unannounced visits by individuals with one or more disabilities to places of business (typically restaurants, hotels, and other retail establishments) to ascertain whether such public accommodations were in compliance with the ADA. Many of these “visits” were undertaken by either representatives of interest groups or “testers”, who may not have even lived close to or otherwise frequented such places. Numerous lawsuits resulted, with Florida being a hot spot for such activity.
With the advent and proliferation of websites and the internet, issues were raised as to whether company websites were within the scope of the ADA and, thus, whether they had a duty to code their websites to be accessible to visually impaired and hearing impaired persons. Despite the fact that the Department of Justice, regardless of its repeated pronouncements, has failed to enact regulations governing the accessibility of websites, claims have been brought against companies for their alleged lack of website accessibility compliance under the ADA. These claims have accelerated and expanded in number. Once again, Florida is at the top of the pack in the number of these lawsuits
The law continues to develop in this area, but it is now reasonably established that if a business operates a “brick and mortar facility” somewhere, which is open to the public, then a website of such business is, or is part and parcel of, a public accommodation and subject to ADA requirements. Failure to adhere to those “requirements” exposes the business to the standard ADA remedies, including injunctive relief and plaintiff’s costs and expert witness and attorney’s fees. This is in addition to, of course, a business incurring its own attorney’s and expert’s fees and other costs in defense of such action.
ADA requirement for websites – WCAG 2.0
So what are the ADA “requirements” in this regard? In the void created by the absence of Department of Justice regulations, courts have looked to private industry and associations for an applicable standard as to website accessibility for the visually impaired. In this regard, certain courts have looked to and even embraced the Worldwide Web Consortium’s Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”) as the standard to be met.
Like their predecessor “testers” or “drive-by visitors”, generally speaking, plaintiffs who file these website accessibility claims tend to be repeat or serial filers. As opposed to their predecessors, however, they do not have to actually visit the company facility (or even leave their house or apartment); rather, all they need to do is access the company’s website from wherever they are. Typically, they do so in the presence of their chosen expert and videotape their maneuvering through the website and the claimed obstacles and deficiencies therein. Thus, many times these cases come “readymade” upon filing.
Given the above, it is best to address these cases promptly. Of course, the best defense would be to have an ADA compliant website (to the extent possible). Care in selecting website programmers and coders is warranted, as WCAG 2.0 has many specific requirements, and consultants must be familiar with them and be able to test compliance appropriately. The experience of many businesses in this regard, as to self-described consultants or experts in the area, has been very uneven. This can be quite a problem, as there are cases where a company’s expert has been rejected, and also cases that hold that efforts to bring a website into compliance, that have not been finalized, do not stay litigation or preclude further litigation against the company, as to the same website, by another plaintiff.
Shuffield Lowman stands ready to assist companies and clients with respect to these issues. Indeed, Shuffield Lowman early on took the lead itself in having its website audited and brought into compliance, and certified in accordance, with WCAG 2.0 AA standards.
by ShuffieldLowman | Jun 28, 2019 | Blog, News |
ShuffieldLowman’s Alex Douglas was recently featured on The Florida Bar Podcast to speak about the latest elder law and estate planning updates. Listen to this episode to hear about qualified beneficiaries, homestead issues, guardianships, irrevocable trusts, and even estate planning for pets. Alex practices in the area of fiduciary litigation with extensive experience in trust, probate and guardianship litigation.
To listen to the podcast visit the Legal Talk Network website: https://legaltalknetwork.com/podcasts/florida-bar/2019/06/florida-bar-annual-convention-2019-elder-law-and-estate-planning-updates/
by ShuffieldLowman | Jun 21, 2019 | Blog, News |
The Orlando Business Journal’s readership recently voted
ShuffieldLowman the area’s best local law firm.
Earlier this year, OBJ readers were invited to submit votes in several categories in Orange, Seminole, Osceola, Lake, Brevard and Volusia counties for the 2019 Readers’ Choice Awards. Thousands of readers participated and then the top finalists in each category went head-to-head in an OBJ Business Pulse poll. The results were will be published in the OBJ’s July 5 weekly edition and is already posted online at OrlandoBusinessJournal.com.
by Nicole Copsidas | Jun 6, 2019 | Blog, Estate Planning & Probate, Fiduciary Litigation |
ShuffieldLowman partner, Alex Douglas, also contributed to this post.
Once a trustee accepts trusteeship of a trust, there are certain fiduciary duties to the trust beneficiaries, according to the Florida Trust Code. Some of these fiduciary duties cannot be modified, regardless of how the trust is written.
What does it mean to accept a trusteeship? A written document expressly acknowledging his acceptance is the most obvious example. However, trustees should understand that acceptance of trusteeship can occur in other ways too. This means a trustee is “on the hook” to comply with his fiduciary duties if he accepts trusteeship by substantially complying with a method of acceptance provided in the terms of the trust, or if the trust does not provide a method for acceptance of trusteeship, if he accepts delivery of trust property, exercises powers or performs duties as a trustee, or otherwise indicates acceptance of trusteeship.
Once a trustee has begun acting as a trustee, he has a mandatory duty to administer the trust in good faith and in accordance with the terms and purposes of the trust, and in the interests of the beneficiaries. The Florida legislature made a recent change to the definition of “interests of beneficiaries” to make it clear that the settlor’s wishes, as expressed in the trust, should be considered. This means that beneficiaries generally cannot circumvent a settlor’s wishes by claiming that their interest is best served some other way. For example, if a settlor expressed in the trust that he only wants a beneficiary to receive lump sum distributions at certain lifetime milestones (e.g., graduating from college, getting married, etc.), the beneficiary cannot alternatively demand trust distributions on a monthly basis.
Similarly, a trustee’s mandatory duty of loyalty requires him to administer the trust solely in the “interests of the beneficiaries,” and to avoid conflicts and self-dealing. Actions by a trustee involving a conflict of interest that are not specifically authorized by the trust or the Florida Trust Code, or otherwise approved by the Court, are voidable and may subject a trustee to liability to the trust beneficiaries.
Another fiduciary duty owed by a trustee is the duty of impartiality. This does not necessarily mean that all beneficiaries should be treated equally. Rather, the trustee should consider the facts and circumstances of each request or action, as well as the terms in the trust, when deciding the best way to proceed. A trustee should not favor one beneficiary over another in conflicts that are merely between beneficiaries and do not relate to the validity of the trust. In the case of Barnett v. Barnett, 340 So. 2d 548, 550 (Fla. 1st DCA 1976), a trustee’s litigation fees were denied because the trustee took a partisan stance and argued the side of one or more of the claimants.
In the event someone contests the validity of the trust, the trustee has an obligation to defend the trusts’ validity surprisingly, while there is no statute. A trustee also has a duty to keep clear, distinct, and accurate records. As part of this duty, a trustee should also make sure that he is keeping trust property separate from his own property. If inadequate recordkeeping results in any obscurities or doubts, all presumptions are against the trustee. It is important for trustees to document each decision made and why the decision was made.
Trustees
should also consider making and keeping records simultaneously with the actions
taken to avoid any doubt concerning accuracy. If a trustee is seeking
compensation, he or she must keep accurate time records. If the trust does not
specify how the trustee should be compensated, the trustee is entitled to
compensation that is reasonable under the circumstances. The burden will be on
the trustee to show the reasonableness of his or her fees.
If
there is a lack of documentation, there is a presumption of impropriety against
the fiduciary. Even saying that a hurricane blew away your records is not an
excuse! Really! In Traub v. Traub, the Court held that, because the trustee failed to keep
accurate records, even though the records were allegedly destroyed, the burden
shifted to the trustee to show that the trust money expended was proper.
Next, a trustee has a duty to keep beneficiaries informed regarding the administration of the trust and to provide accountings. Initially, a trustee must notify qualified beneficiaries of the existence of the trust, identify himself as the trustee, and explain the beneficiaries’ right to receive trust accountings. Other mandatory duties of the trustee are to provide a complete copy of the trust and to account to qualified beneficiaries by providing a trust accounting at least once annually. Additionally, if a qualified beneficiary of an irrevocable trust requests relevant information about the assets, liabilities, or particulars relating to the trust administration, a trustee has a mandatory fiduciary obligation to provide the requested information. However, as long as a trust is revocable, the trustee’s duty is only owed to the settlor (the person who made the trust) of the trust.
Another important fiduciary duty is the duty of prudent administration. There is no “winging it” when it comes to trust administration. A trustee must administer the trust as a prudent person would, by considering the purposes, terms, distributions, requirements, and other circumstances of the trust. Trustees must exercise “reasonable care, skill, and caution.” If a trustee is unsure whether certain action (or inaction) is the best choice, he should investigate and seek all information necessary to make an informed decision. This is good advice even if all beneficiaries consent to the action or inaction– trustees still need to make sure their discretionary actions make sense and are in the best interest of the beneficiaries as defined by the trust.
During the course of prudent administration of the trust, the trustee should only incur reasonable expenses. A trustee should consider what is reasonable for him to do on his own, versus what is better for a professional to do. If a trustee is hiring an outside vendor to perform a task (e.g., accountants, attorneys, etc.), he should negotiate a reasonable fee for the work needed. If a trustee has his own set of special skills, he will be expected to use that set of skills. A corporate fiduciary will be held to a higher standard than an individual. Fair compensation should be based upon the trustee’s particular skills.
When it comes to hiring third parties, a trustee must choose wisely. He should investigate the background of all professionals and agents hired, including attorneys, accountants, investment advisors or other agents. Generally, a trustee may act on the recommendations of such persons without independent investigations.
Finally, when it comes to claims of creditors, a trustee has a mandatory obligation to file a notice of trust upon the settlor’s death. A trustee must also pay expenses and obligations of the settlor’s estate, in the event the assets of the settlor’s estate are not sufficient to satisfy valid creditors’ claims.
Navigating this process can get complicated, so should you have any questions regarding the duties of a trustee, feel free to contact one of our highly-qualified and experienced trust attorneys.
Learn about protecting yourself as a trustee in our other blog post: How to Protect Yourself as a Trustee.
by Alexander Douglas | Jun 6, 2019 | Blog, Estate Planning & Probate, Fiduciary Litigation |
ShuffieldLowman attorney, Nicole Copsidas, also contributed to this post.
In the event that a problem develops in the trust administration of an irrevocable trust (a trust that cannot be amended by the person who created the trust), or if there is an ambiguity in the trust document itself, or there are allegations by the beneficiaries that the trustee is not serving the interest of the beneficiaries, the first safe harbor to consider is a non-judicial settlement agreement. This is an agreement that is signed by the trustee and the beneficiaries that have a present income or beneficial interest in the trust, and from the beneficiaries that get the rest of the trust (i.e. the “residual” or “remainder” beneficiaries) when the persons who have the present income or beneficial interest die (these persons are also called the “qualified beneficiaries” under the trust code). You may not use a non-judicial settlement agreement to produce a result not authorized by other provisions of Florida’s Trust Code, or that could not be properly approved by the court. These types of agreements may cover:
- The interpretation or construction of the terms of the trust;
- The approval of a trustee’s report or accounting;
- The direction to a trustee to perform, or refrain from performing, a particular act; or
- The liability of a trustee for an action relating to the trust.
Another
safe harbor is to obtain the consent and release from all of the qualified
beneficiaries. When obtaining a consent and release from the qualified
beneficiaries, the trustee should give full disclosure of the relevant
facts. Alternatively, a trustee may ask the court to provide the trustee
direction which is also called “declaratory relief” or “declaratory action”.
Any interested person can invoke the court’s jurisdiction to obtain declaratory
relief, and the proceeding can relate to construction, validity,
administration, or distributions of trust. A declaratory action can also
be utilized to have the court review a trustee’s fees, review and settle
interim trust accountings or final trust accountings, determine any right or
duty of the trustee, seek instruction by the trustee, or determine any other
matters involving trustees or beneficiaries.
For instance, let’s say a family relative dies and leaves a trust for you and
your siblings so you can pursue a “college or higher education degree” and the
bank is the trustee. Let’s also assume that your child wants to go to a
technical school to become a mechanic and wants the trust to pay for this
education. The trustee may raise a concern that the technical school will not
result in a “college degree” and therefore could file an action with the court
to ask the court to interpret the trust or permit the trustee to use trust
funds to pay for the technical training. The trustee alternatively could obtain
the written consent of all of the trust’s qualified beneficiaries (assuming
they are of age or have their parent’s consent) to use the trust funds to pay
for the technical training.
Finally, a
trustee who is considering exercising a discretionary power may seek judicial
approval before acting if there is concern that a beneficiary may object. In
such circumstances, the trustee should file a petition that describes the
proposed exercise or non-exercise of the discretionary power and sets forth
sufficient information to inform the qualified beneficiaries of the reasons for
the proposal, the facts upon which the trustee relies, and explains how other
beneficiaries will be affected. The burden is then on the objecting beneficiary
to show why the proposed exercise or non-exercise of the power by the trustee
is an abuse of the trustee’s discretion.
For
example, if a trustee is allowed to distribute trust funds in any amount that
the trustee deems just and proper for the benefit of three beneficiaries, and
one beneficiary has a greater financial need because of a disability than the
other two, the trustee before making the distribution can seek judicial
approval to favor the beneficiary that has more financial needs over the
other two beneficiaries. Otherwise, without court approval or consent of the
beneficiary, the trustee could be exposed to allegations that the trustee
inappropriately favored one beneficiary over another and otherwise that the
trustee breached his or her duty of good faith.
The facts and circumstances governing trust administrations differ on a case-by-case basis. ShuffieldLowman has an experienced team of trust attorneys that can guide trustees through the trust administration process to ensure they are complying with their mandatory fiduciary duties. Our attorneys can also assist trust beneficiaries with understanding their rights and recognizing breaches of fiduciary duty by a trustee who has veered off course.
Learn more about the duties of a trustee in our blog post: Understanding the Fiduciary Duties of a Trustee.
by Nicole Copsidas | May 7, 2019 | Blog, Commercial & Civil Litigation |
After a tenancy has been terminated or expired, and the premises have been vacated by the tenant through eviction, surrender, abandonment, or otherwise, a landlord may find himself in possession of abandoned personal property which remains on the premises. Although a landlord may be tempted to immediately sell or dispose of the abandoned property, he may be subject to liability if he does not follow the proper procedures outlined by Florida law. The Disposition of Personal Property Landlord and Tenant Act provides the necessary guidance to avoid liability under these circumstances. See § 715.10, F.S., et .
Any personal property left behind should be left on the premises or stored safely by the landlord. A landlord has a duty to exercise reasonable care in storing the property, but he is not liable to the tenant or owner of the property for any loss.
Florida Abandoned Property Notice – How to Use
The first step a landlord should take to properly dispose of personal property is to notify the tenant, and any other person the landlord reasonably believes to be the owner of the abandoned property, that such property remains on the premises. The notice should be in writing, and it should describe all of the property left behind. The description should be detailed enough so that the owner of the property can identify it.
The notice should also notify the owner of the property where the property is being stored (if not remaining on the leased premises), and that reasonable costs for storage may be charged before the property is returned. There should be specific information as to where the property may be claimed and the date before which claim must be made. Such date must be a minimum of ten or fifteen days away, depending on how the notice is served. The Florida Statutes provide sample notice forms that should be used.
If the owner of the property, or anyone reasonably believed to be the owner, pays the costs of storage and acts to take possession of the property on or before the date specified in the notice, the landlord should release the property.
When is Property Considered Abandoned in Florida?
If the owner of the property does not respond within the time frame allotted, the landlord may take action to sell or dispose of the property. If the abandoned property is estimated to be worth less than $500.00, the landlord is free to dispose of it however he would like. If the estimated value of the abandoned property exceeds $500.00, the landlord should arrange for a public sale of the property at the nearest suitable place to where the property is held or stored. Before the sale may occur, notice should be published once a week for two consecutive weeks in a newspaper of general circulation where the sale is to be held. The advertisement should include the name of the former tenant, a description of the property to be sold, and the time and place of the sale.
A landlord is permitted to bid at the public sale. The successful bidder’s title to the property is subject to ownership rights, liens, and security interest which have priority by law. After the costs of storage, advertising, and the sale have been deducted from the proceeds of the sale, the balance may be claimed by the tenant or property owner within thirty (30) days. If the funds are not claimed, they must be paid into the county registry. At that time, the landlord should be relieved of all further obligations regarding the abandoned property.
There may be similar circumstances where someone is looking to dispose of personal property even when the parties are not connected through a traditional landlord-tenant relationship. Although Chapter 715, Florida Statutes, does not expressly state whether this procedure applies in a situation not involving a landlord and tenant, it would seem reasonable to follow this procedure before disposing of unwanted property in order to avoid liability. It should also be noted that Florida law provides a separate procedure for items abandoned on public property, which involves law enforcement taking possession of the items and auctioning them. See Chapter 705, Fla. Stat.
This article provides an overview of the process for a landlord to dispose of property left at the premises by a former tenant. You should contact an attorney to determine whether this process is appropriate for your individual situation, and to obtain all of the information necessary to ensure compliance with applicable Florida law.
