Category Archives: Trusts & Estates

Litigation Partner Eric N. Assouline to Speak at Circuit Court Boot Camp CLE

Eric N. Assouline, Litigation Partner of The Business Law Firm Assouline & Berlowe, P.A., has been again invited to present as a panelist at the upcoming Circuit Court Boot Camp for Practical Trial Litigation Skills. 

Mr. Assouline has been involved in a wide range of business and commercial litigation.  At this seminar, he and other distinguished panelist, will share their experiences practicing in the state courts.

Learn tips of the trade from experienced members of the bar and bench about litigation skills. 

Circuit Court Boot Camp (4th Annual)

A Practical Trial Litigation Skills Program (Fort Lauderdale 2015)

April 10th, 2015 9:00 a.m. – 5:00 p.m. Sheraton Fort Lauderdale Airport & Cruise Port Hotel 1825 Griffin Road  Dania, FL 33004

Click here for more information or to register.

Can’t Attend? Click here to order the home study audio CD. Want the CD now?  Order the recording of our 2014 boot camp here

What you’ll learn when you attend:

  • Case Development & Theories
  • Motions for Summary Judgment/Adjudication
  • Other Motions
  • Discovery and E-Discovery
  • Depositions
  • Oral Arguments
  • Heading to Trial
  • Pre-Trial Matters
    • Bench trial pointers
    • Client and witness preparation
    • Jury selection – voir dire and questionnaires
    • Jury instructions and jury verdict forms
    • Opening trial briefs
    • Motions in Limine, motions to exclude witnesses from courtroom
    • Requests for Admissions of Fact
  • Trial Presentation
    • Opening statements
    • Direct and cross examinations
    • Objections
    • Exhibits
    • Expert witnesses and reports
    • Closing arguments
  • Post-Trial Motions

Full and partial scholarships are always available to legal aid firm attorneys.

We hope to see you there.

Best wishes,
Eric N. Assouline

Business Litigation

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ERIC N. ASSOULINE, ESQ.

Business Litigation Partner

ASSOULINE & BERLOWE, P.A.

213 E. Sheridan Street, Suite 3

Ft. Lauderdale – Dania, FL 33004

Telephone: 954-929-1899

Facsimile: 954-922-6662

Email: ena@assoulineberlowe.com

www.assoulineberlowe.com

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Intellectual Property, Labor & Employment Law,  Real Estate, International Disputes, Commercial Litigation, Corporate Law, and Bankruptcy

Miami · Ft. Lauderdale · Boca Raton

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I Lost the Case…Should I Appeal?

Courthouse Litigator - Miami Assouline & Berlowe Business Law Firm “When a party comes to us with nine grounds reversing the district court, usually there are none.”  Best said by a jurist from the Sixth Circuit Court of Appeals in a recently issued appellate opinion.

Civil cases are often long, drawn out, expensive, and unpleasant affairs.  Litigants may encounter innumerable pleadings, extensive document production requests and witness depositions, seemingly never ending pre-trial motions, and pre-trial conferences and settlement discussions. All this, even before the jury trial begins. Then we have jury selection, opening statements, direct and cross examination (and possibly redirect and re-cross), and closing statements, jury instructions, jury deliberations, and a then final judgment. In some cases, the emotional impact of this process can be devastating.

But the story may not end there. A losing party may then consider appellate review of the final judgment. A federal administrative agency’s decision may be reviewed by a court of appeals. Also, in certain cases, review may be obtained, first in a district court, rather than a court of appeals.

In most bankruptcy courts, an appeal of a ruling by a bankruptcy judge may be taken to the district court. Several courts of appeals, however, have established a bankruptcy appellate panel consisting of three bankruptcy judges to hear appeals directly from the bankruptcy courts. In either situation, the party that loses in the initial bankruptcy appeal may then appeal to the court of appeals.

Let’s consider some statistics. According to recent statistics, during the year ending September 2013, a total of 284,604 new civil cases were filed in the US District Courts:

  • Florida Northern District,  2,016
  • Florida Middle District,     8,443
  • Florida Southern District, 8,398.

The Median time from filing to trial:

  • Florida Northern District,  25.7 months
  • Florida Middle District,     19.8 months
  • Florida Southern District, 16.5 months

Number of civil cases over 3 years old:

  • Florida Northern District, 49;
  • Florida Middle District, 1,423
  • Florida Southern District, 94

During the same period, the 11th Circuit Court of Appeals (covering Alabama, Florida, and Georgia District Courts) had a total 6,366 new cases filed and 3,352 still pending. And, the median time from Notice of Appeal to Final Disposition: 7.6 months.

Considering the nature of the case and the complexity of issues, attorneys fees and costs can realistically reach six and seven figure dollar amounts.  To begin with, the Federal District Courts pursuant to Title 28 U.S.C. § 1332(a) may hear cases and controversies where “the matter in controversy exceeds the sum or value of $75,000.” Then, unless otherwise specifically provided for by statute, attorneys fees are subject to the so-called “American Rule,” That is, each party pays its own attorneys fees (unlike the “English Rule” in United Kingdom where the winner is usually awarded those).

Certainly, the volume and backlog of civil cases in appellate courts, as well as the potential costs of further litigation, a disappointed losing party must carefully consider, in concert with trial and appeals counsel, the ramifications of pursuing an appeal.

At times, emotion, the need to establish legal precedent, or some other idiosyncratic factor may a be primary driver.  However, unless permitted by statute to review factual issues de novo (anew), an appellate court will only review legal error. And then, generally, trial counsel at the district court must have preserved legally sufficient grounds to appeal; in the case of an administrative agency decision, the hearing record. Trial counsel may also preserve grounds for appeal in a post-judgment motion; bringing up new issues very rarely prevails.

Moreover, counsel should decide which issues to assert in an appeal.  Appealing a litany of issues (the kitchen sink approach) may tell the appellate body that you are grasping at straws and there are no genuine appealable issues.  See Fifth Third Mortg. Co. v Chi. Title Ins. Co., 692 F.3d 507 (6th Cir. 2012).  In Fifth Third Mortg. Co., a title company appealed nine (9) issues to the Sixth Circuit in an attempt to overrule the district court.  The opinion from the appellate court opens with: WHEN A PARTY COMES TO US WITH NINE GROUNDS REVERSING THE DISTRICT COURT, USUALLY THERE ARE NONE.  This is a classic line that every litigant should consider when analyzing how many issues to argue should be reversed on appeal.

Ultimately, the Sixth Circuit affirmed the district courts granting of summary judgment requiring the title company defend and indemnify the bank in a property dispute.

Litigation, at all stages requires comprehensive and reasoned legal analysis, strategic planning, and zealous but thoughtful advocacy.  Civil appeals require the same level diligence. However, constrained by the trial record, appellate counsel in written briefs and, in most instances, at oral argument before a panel of appeals court judges must know and artfully articulate the law.  One commentator has said “they have a refined skill set, an often academic focus on the nuances of the law and the precedent, and a preference for cool and collected analysis that remains “above it all.”

Should you appeal? It is not an easy question to take lightly or answer quickly. Each case is unique. And, only a dispassionate and reasoned analysis can only help provide perspective.

For more information contact:

Carl H. Perdue, JD, LLM

Senior Counsel and Partner

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: CHP@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

This article was edited by Litigation Partner Eric N. Assouline and Patent Attorney Greg M. Popowitz, who can be reached at their Email addresses: ena@assoulineberlowe or gmp@assoulineberlowe.com respectively.

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Court: Garnish the Discretionary Spendthrift Trust!

“Oh what a tangled web we weave when we first practice to deceive.”

Those are the initial words of a judicial opinion of the Florida District Court of Appeals, Second District, filed November 27, 2013. (Berlinger v. Casselberry; Case No. 2D12-6470). The Court affirmed the trial court’s finding that a garnishment order can reach otherwise protected monies of a discretionary trust.

Although a probate and family law matter, the case is also instructive for general creditor and debtors claims. A trail of factual and legal maneuvers that at first blush seemed reasonable, later are found to be perhaps counterproductive; considering the complex interplay of statutory interpretation, equity, and public policy.

In 2007, after 30 years of marriage, a former husband (Beringer) and former wife (Casselberry) divorce. Amicably reaching a financial settlement, the former husband continues to pay his $16,000 a month permanent alimony obligation until early 2011. Before a hearing is held on the former wife’s petition to the former, husband agrees to liquidate his IRA to satisfy the alimony arrearages. The Court then issued a writ of garnishment to the discretionary trust bank trustee. Subsequently, without supplementing his financial disclosures and effected by an attorney who was a longtime friend of his personal attorney, the former husband transferred his interest in real property (that included his residence) to a discretionary Irrevocable Life Insurance Trust.  After he established the trust, the former husband was deposed; swearing that there were no life insurance trusts. Interestingly, the bank, as corporate co- trustee, issued the former husband a credit card from which his personal expenses (e.g., travel, entertainment, clothing, medical expenses, grooming, gifts, and his current former wife’s credit card bills) were paid.

Confronted with those facts, the former wife filed a civil contempt and enforcement action against the bank trustee. Neither the former husband nor the bank trustee objected; and the Court issued writs of garnishment against the bank trustee.  Finally, the former wife filed a motion for a continuing writ of garnishment against the bank trustee to attach the present and future distributions made to or for the former husband’s benefit from any trust. She alleged that traditional methods of enforcing alimony were insufficient.

At a hearing seeking a declaration that the family trusts were discretionary trusts, the trustee argued that, subject to Florida Code §736.0504 they had greater protection from creditors. Specifically in this case: “prohibiting any creditor including (the former wife) from attaching distributions on behalf of or for the benefit of (the former husband).” Rejecting that argument, the Trial Court granted continuing writs of garnishment. It substituted the trustee for the former wife as the garnishee. And, it further ordered all distributions made directly or indirectly to, on behalf of, or for the benefit of the former husband made payable to the former wife unless, at the time of any future distributions, there was no alimony or alimony arrears owed. Moreover, if trustee wished to make distributions to the former husband beyond the amount of the then outstanding amount of alimony, trustee must seek court approval before doing so to ensure that there remained sufficient assets in the trust to secure the continued payment of alimony.

Because its decision required statutory interpretation, the Appellate Court was permitted to review the matter de novo (anew). That is, as in the Trial Court, its case analysis and decision involved examining the specific facts in light of the statutory mandate.

The trusts were indeed, in light of the statute, determined discretionary spendthrift trusts. Discretionary: since the distributions were completely within the fiduciary discretion of the trustee; spendthrift: since the statute protects the trust funds from creditor attachment or assignment.

On similar facts in an earlier Florida Supreme Court case (Bacardi v. White, 463 So.2d 218 (Fla. 1985)), and given the former wife’s standing spousal support order, the Appellate Court denied the trusts statutory protection. Specifically tracking the language of Florida Statute § 736.0503, the Court upheld “an order attaching present or future distributions to or for the benefit of the beneficiary (because this is the former wife’s) last resort (and) that traditional methods of enforcing the claim are insufficient.”

Interestingly, the Appellate Court pronounced that “Florida has a public policy favoring spendthrift provisions in trusts and protecting a beneficiary’s trust income; however it gives way to Florida’s strong public policy favoring enforcement of alimony and support orders.”

Not within the four corners of the decision, the Appellant former husband’s actions to “ring fence” trusts, transfer his interest in real property, and testimony at a subsequent deposition proved counterproductive. In an action in equity, they could be characterized as demonstrating “unclean hands.” In such case, equity could deny a claimant protection.

Whether a personal estates and trusts matter or a commercial debtor–creditor transaction, professional guidance and factual scenario planning is critical: an ounce of crisis planning is worth a pound of crisis management!

For more information contact:

Carl H. Perdue, JD, LLM

Senior Counsel and Partner

chp@assoulineberlowe.com

ASSOULINE & BERLOWE, P.A.

The BUSINESS LAW Firm

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami · Ft. Lauderdale · Boca Raton

Miami: 305-567-5576

Ft. Lauderdale: 954-929-1899

Boca Raton: 561-361-6566

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