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WATCH What You Ask For—Waiver of Personal Jurisdiction by Seeking Attorneys’ Fees

00229540On Wednesday, December 13, 2017, Florida’s Third District Court of Appeal issued a decision that will have Florida attorneys carefully considering whether to seek attorney’s fees in conjunction with a motion to dismiss for lack of personal jurisdiction.  In TBI Caribbean Company LTD, etc., et al., v. Stafford-Smith, Inc., etc., the Third DCA determined that defendants/appellants waived their jurisdictional objection to personal jurisdiction by seeking attorney’s fees, while simultaneously (and inconsistently) seeking to also dismiss Plaintiff’s complaint.  The TBI case centers around TBI Caribbean Company LTD’s (“TBI Caribbean”) and Jesus Hinojosa’s (“Hinojosa”) appeal from the trial court’s non-final order denying their respective motions to dismiss Plaintiff’s complaint.

The original dispute between the parties concerned a subcontract between Plaintiff and TBI Caribbean and Hinojosa’s personal guarantee of TBI Caribbean’s obligations under the subcontract.  With respect to jurisdictional allegations, Plaintiff’s complaint only stated that the terms of the subcontract defined the proper jurisdiction to be the State Court in Dade County, Florida.

Both TBI Caribbean and Hinojosa moved for dismissal on Plaintiff’s failure to sufficiently allege a basis for personal jurisdiction.  Both motions to dismiss requested attorney’s fees pursuant the subcontract. 

Defendants’ respective motions to dismiss were both denied and defendants appealed. On appeal, the Third District Court of Appeal determined that while in personam jurisdiction could not be established by contractual agreement alone, TBI Caribbean and Hinojosa had inadvertently waived this objection by requesting attorney’s fees.  

By requesting attorney’s fees under the very contract which Defendants denied provided the court with jurisdiction, Defendants’ counsel provided the Third DCA with a more than opportune moment to say “You can’t have your cake and eat it too.”

The question, however, of whether a request for attorney’s fees can ever be made without waiving a personal jurisdiction objection in Florida state courts remains.  The Third DCA’s opinion is just the latest in a small but diverse handful of cases from District Courts of Appeal around the state addressing the question. See e.g., Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996); Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977); Gustafasson v. Levine, 186 So. 3d 562, 564 (Fla. 4th DCA 2015).

The recent Third DCA opinion marks a break from the First and Fourth DCA cases on the matter. The First and Fourth DCAs determined that a request for fees did not waive a defendant’s personal jurisdiction objection. See id. In coming to its decision, the Third DCA, like the First and the Fourth before it, applied the rule that lack of personal jurisdiction is not waived as a defense so long as it is raised in a party’s first response and the party does not inconsistently seek affirmative relief in the jurisdiction.

The Third DCA differed in its application of the aforementioned rule by finding that the distinction between affirmative relief and other relief is “problematic” and shifting the focus of the analysis to the question of inconsistency. The Third DCA ultimately held that because defendants’ request for attorney’s fees was based on the subcontract, it was inconsistent with the jurisdictional objection. While the Third DCA ultimately distinguished this case from the cases heard by the First and Fourth DCAs on the facts, this new opinion should give Florida attorneys pause when considering whether to request attorney’s fees in a motion to dismiss for lack of personal jurisdiction.

Personal jurisdiction continues to be an important litigation issue that should be given considerable consideration when dealing with out of state parties.  Now asserting a right to attorneys’ fees in such a dispute may result in an inadvertent waiver.


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Attorneys: Thanks-for-Giving Back to the Community

Legal Aid Picture of Litigation Attorney Eric N. Assouline

Happy Birthday Eric N. Assouline, and thank you for your Pro Bono work at the Legal Aid Service of Broward County!

At a time when the front page article of the Daily Business Review is reporting on an $18M legal fee being imposed upon a public company for unnecessarily fighting about every legal issue in a drawn out commercial dispute, and lead counsel’s normal hourly rate of $1,200 an hour being cut down to $675 an hour by a Federal Magistrate to be more in line with prevailing community rates, it is very humbling to discuss “real life” legal problems ordinary people deal with every day.   

I spent part of my 49th Birthday at the Legal Aid Service of Broward County’s offices in Fort Lauderdale speaking to individuals who called Legal Aid for assistance with their legal problems.

I learned long ago, from my former boss Hank Adorno, who taught all the associates at Adorno & Zeder, that it was the culture of the firm to give back to the community.  Going back to the Adorno days, we were paid by the firm to help those that were less fortunate, including reading to elementary school children and participating in Hands On Miami. 

Keeping up with that tradition, Litigation Partner Eric Assouline is seen here speaking to a group of young men and women about how hard work pays off.  Attorney Assouline also received a FLITE Program framed certificate as a thank you for his time.


Giving back time to the community has been part of the culture at Assouline & Berlowe.  As mentioned on the Community Service page of the Firm’s website:  The Firm has been involved in giving back to the community, in the form of time, money, and energy in order to support those who are less fortunate as well as in support of other important causes.

Examples of how the firm has been involved in philanthropic commitments are many. As early as in 2004, when the Firm was just a year old, the Firm sponsored a mayoral debate for Miami-Dade County.

In 2005, the Firm sponsored the Beauty and the Best Fund Raising Program for the Cystic Fibrosis Foundation.


In 2006, the Firm sponsored Juvenile Diabetes Research Foundation (JDRF) Walk-a-Thon in Sunrise, Florida.  In 2014, the firm again returned to support JDRF when the Firm sponsored a charity golf tournament in support of JDRF.

In 2008, during the economic crises, as the headlines were filled with news about Americans losing their jobs, the Firm did not feel it appropriate to have a year end holiday “party” for its staff.  Instead of celebrating another successful year, the Firm made a donation to the Joe DiMaggio Children’s Hospital for the support, care and treatment of children at Joe DiMaggio Children’s Hospital at Memorial Regional Hospital in Hollywood, Florida.

The donation is commemorated by an inscribed brick to be placed next to the statute of Yankee Clipper, Joe DiMaggio at the hospital.


Joe DiMaggio Paver

Brick Paver at the Joe DiMaggio Children’s Hospital, in Hollywood, Florida


In Miami, the Firm donated to the Miami Children’s Hospital, and was recognized with another inscribed brick at the Fountain.

The Firm has also been involved in several directorships for non-profit organizations. For example, Eric Assouline serves as a director for both the B’Nai Brith Justice Unit and Jewish National Fund. Ellen Leibovitch is a director with the South Palm Beach County Bar Association. Mr. Assouline and Ms. Leibovitch have also been involved in supporting the Florida Bar as members of the Florida Bar Grievance Committees in Broward and Palm Beach counties.

On this Thanksgiving Holiday, on behalf of my firm and all those attorneys that Give Back to the community, I want to say Thank you.

Happy Holidays.

Eric N. Assouline, Esq.

Managing Partner, Assouline & Berlowe, P.A.

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University of Miami Law Alumni – 1997 Class 20th Anniversary Reunion


Assouline & Berlowe, P.A., The BUSINESS LAW Firm, proudly sponsored the University of Miami Law Alumni Association’s 20th Reunion for the 1997 Graduating Class.  Eric N. Assouline, Esq., a member of this graduating class from the “U” was in attendance with many others, at the law school.  For Eric, it was a great time to see many of his classmates not seen in many years, as well as to meet some new classmates he had not known while in school together.

The event took place at the Coral Gables campus of the U just days before the University of Miami won another giant victory in its undefeated season, on the road to its first run to a national championship since 2001.

Eric is one of many of the attorneys at Assouline & Berlowe who graduated from the U.  Besides Eric, named partner and Head of Real Estate Litigation Peter Berlowe, Intellectual Property Partner and Patent Attorney Loren Pearson, and International Arbitration Partner Daniel Vielleville all also graduated from the University of Miami.

Eric Assouline sits on the Board of Directors of the University of Miami Law Alumni, and he often assists the University of Miami with students’ Moot Court and Mock Trial competitions.


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Florida Judgment Interest Rate Increase to 5.35%, sort of.


Hamilton – Assouline & Berlowe – Business Law Firm – joint tax disclosure by US and Swiss governme

Florida has a very interesting way to keep track of the interest rate of a Florida judgment.  Unlike the old system that was in place, Florida requires a judgment holder to compute the interest rate of their judgment by the quarter of the year.  The interest rate is determined by Florida’s Chief Financial Officer.  So, it is possible that a judgment that is one year old may have more than one interest rate for the past one year period.

After being stuck at 4.75% from October 2011 to March 2016, Florida’s interest rate has been steadily creeping upward.  During the second quarter of 2017, Florida’s judgment interest rate was 5.17%.  Florida’s CFO has just announced that the new applicable interest rate for the third quarter of 2017 is now 5.35%.  Florida’s interest rate is now at its highest in 6 years.

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Filed under Arbitration, Bankruptcy, Business Litigation, commercial litigation, International, Uncategorized

Former U.S. Ambassador Discusses Technology & Miami as Global City


Assouline & Berlowe Partner Peter E. Berlowe had the privilege of listening to firm friend Former U.S. Ambassador to Singapore Hon. Kirk Wagar speak last week at Pipeline Workspaces. Ambassador Wagar spoke about opportunities in South and Southeast Asia and how Miami can grow in to a truly global city.  In part, Ambassador Wagar discussed how driverless vehicles and related technology will begin to have far reaching implications for worldwide employment and economics over the next five to ten years.  Ambassador Wagar reflected upon the United States as the true world power, in part because of U.S. private business’ continued respect for business formalities and intellectual properties of the other countries in which they invest.  Pictured are Peter E. Berlowe, Hon. Kirk Wagar, and WLRN V.P. of News Tom Hudson.

For more information about the speech or related issues, please contact Mr. Berlowe at:

Peter E. Berlowe, Esq.


3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343


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

Miami • Ft. Lauderdale • Boca Raton

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Filed under Arbitration, Business Litigation, commercial litigation, Intellectual Property, International, Uncategorized

Federal Stop to New Overtime Rules

Do Not Disturb

Six months ago, Partner and Florida Bar Board Certified Labor and Employment Attorney Ellen Leibovitch wrote to tell you about new overtime regulations that were to go into effect on December 1 (see below). However, on November 22, 2016, a federal judge in Texas issued a nationwide preliminary injunction which effectively put a stop to these rules – for now.

The injunction will preserve the status quo until the court decides the rule’s validity, a decision which will come weeks or months down the road and will likely be appealed in any event.

For employers, this ruling means that the new rules will not go into effect on December 1 and that the old regulations will continue to apply until further notice. Additionally, measures the employers planned in contemplation of the new rules going into effect on December 1 can be put on hold for the time being. Employers can decide if measures already taken in anticipation of the sweeping rule changes – such as raising the salary of exempt employees to meet the expected $47,476/year (or $913/week) threshold – should remain in place, although reversal of these changes may be met with employee backlash.

A note of caution: employers should not assume that the overtime rules will never go into effect. This situation is eerily similar to the rule changes made in 2015 regarding the companionship exemption under the Fair Labor Standards Act. In that situation, the Department of Labor announced changes which would render the exemption inapplicable to third party (home care) providers, then the federal court issued an injunction to prevent the changes from going into effect, then an appeals court struck down the injunction; and the changes eventually went into effect a year after the original date. Given the current political climate, your guess is as good as mine as to whether this same scenario will occur with respect to the overtime rules. As always, I will continue to keep you apprised of any developments.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466


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

Miami • Ft. Lauderdale • Boca Raton

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New Overtime Regulations Impacting You




Board Certified Labor and Employment Partner Ellen Leibovitch will be speaking on October 20, 2016 about important changes to the overtime regulations under the Fair Labor Standards Act (FLSA) that will go into effect on December 1, 2016.  Ellen, who recently appeared in the Boca Raton Observer, will discuss what employers need to know about the changes to the FLSA to protect their companies.

Please join the South Palm Beach County Bar Association’s Labor & Employment Committee on October 20, 2016 for breakfast and a panel discussion on the scope of the new rules and best practices for making sure your business is fully compliant as of day one.  To register online, click here.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466


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

Miami • Ft. Lauderdale • Boca Raton


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Filed under Business Litigation, Florida Bar, Labor & Employment, labor and employment law, Uncategorized