By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

At the end of a lawsuit, the prevailing party often ends up with a final judgment awarding it some monetary amount from the losing party. This amount can include amounts for damages, attorney’s fees, and costs.

In many cases, obtaining the judgment is only the first step in recovering any money awarded. Collecting on a judgment can sometimes be more intensive than actually getting the judgment awarded by the court.

While there are many active ways to attempt to collect on a judgment such as garnishing wages and bank accounts, judgment creditors can also use their judgment to create a lien on the judgment debtor’s real and personal property.

Real Property

Real property is land and the buildings which occupy the land. A judgment can become a lien on the judgment debtor’s real property. In order for a judgment to become a judgment lien on a judgment debtor’s real property, a certified copy of the judgment must be recorded in the official records of the county where the judgment debtor owns real property. Additionally, the judgment itself must contain the address of the individual who possess the lien as a result of the judgment or an affidavit must be simultaneously recorded with the certified copy of the judgment stating the lien holder’s address.

Once a judgment is recorded as described above, it becomes a lien on real property. Importantly, a judgment lien is only effective in the county for which it is recorded. If a judgment is recorded in Polk County but the judgment debtor only owns real property in Orange County, the judgment holder has not created a lien on the judgment debtor’s property. As a result, great care must be taken to ensure that the judgment is recorded in the appropriate counties to create a lien on a judgment debtor’s property.

Judgment liens on real property have an expiration date. Under the current law, a judgment lien recorded on or after July 1, 1994 remains a judgment lien on real property for ten years from the date of its recording. A judgment lien holder can extend this period for one additional ten-year period by rerecording a certified copy of the judgment prior to the expiration of the lien and by simultaneously recording an affidavit with the current address of the lienholder. An extension is effective from the date the certified copy of the judgment is rerecorded. No judgment can act as a lien on real property in Florida after twenty years from the date of the entry of the judgment expires.

Personal Property

A judgment can become a lien on the judgment debtor’s personal property by filing a judgment lien certificate with the Florida Department of State. The Florida Department of State produces a form Judgment Lien Certificate which can be filled out and filed with the department in order to create the lien on personal property. A judgment lien on personal property becomes effectives the date it is filed.

A judgment lien on personal property also has an expiration date. A judgment lien pursuant to a judgment lien certificate, becomes invalid five years after the date of the filing of the judgment lien certificate. However, at any time within six months before or six months after the scheduled lapse of a judgment lien, the judgment creditor may acquire a second judgment lien by filing a new judgment lien certificate. The effective date of the second judgment lien is the date and time on which the judgment lien certificate is filed. The second judgment lien permanently lapses and becomes invalid five years after its filing date, and additional liens based on the original judgment or any judgment based on the original judgment may not be acquired.

When dealing with liens time is of the essence as liens are generally prioritized by the time with which they were recorded or filed. If someone records their judgment first or files their judgment certificate first, it will generally be superior to those liens that are recorded or filed later in time.

Florida law does provide for certain homestead exemptions which exempt a judgment debtor’s homestead and some personal property from forced sale and from judgment liens. If you believe that certain property may be protected by Florida’s homestead exemption it is recommended to consult with an attorney regarding these rights.

If you were recently awarded a judgment, or are attempting to collect on a judgment, I would advise hiring an attorney to streamline the process and to make sure your judgment is perfected appropriately against the assets of the judgment debtor.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

In the United States some eighty-one percent of people have some form of a social media profile. Social media is a great way to share your life with friends but it is increasingly becoming a source of evidence in legal proceedings. It is not uncommon to see that a Facebook post was the reason for the apprehension of a criminal suspect but social media is also playing a large role in civil litigation.

Gathering the Evidence
The first mechanism an attorney or investigator may use in attempting to gather social media evidence is by simply searching the individuals name. Many people do not have their social media profiles set to private which allows for a simple search of the individuals name on the leading social media websites to lead to a wealth of personal information including information that may be damaging to your case.

However, many individuals do have some level of privacy enabled on their social media accounts. In this case profiles can still be exposed by sharing content with friends who do not have strong privacy settings or through the ordinary means of discovery in a lawsuit.

In a civil proceeding, a party may obtain discovery regarding any matter that is relevant to the lawsuit, as long as such information is not protected by some form of privilege. Florida courts have already held that pictures from Facebook and other social media postings are discoverable in lawsuits. This is even true if the individual has enacted the strictest of privacy settings. Courts in Florida have effectively acknowledged that one who creates a social media account accepts that their personal information will be shared with others regardless of the user’s privacy settings.

Authenticating the Evidence
In court proceedings, it is one thing to gather the evidence and another thing to get that evidence admitted into a proceeding to be used by the judge or jury to render a decision. While discovery allows for broad requests of information, admitting a social media post at a proceeding must meet a more exacting standard.

In order for any evidence to be admitted, including social media posts, the evidence must be authenticated. The courts want to be as certain as possible that what is being admitted is not a forgery or altered in any way. This is usually done through a series of questions to a witness which include how the post was copied or saved from the website, who made the post, and who has personal knowledge that a certain individual made the post. These questions can address any other identifying features of the proposed social media evidence. Additionally, Florida courts have begun to allow expert witnesses such as internet consultants to assist in the authentication of website evidence.

Protecting your Information
The first thing everyone should do in order to better protect social media information is to make sure you take advantage of the privacy features offered by the service itself. Just as important as your own privacy settings, it is also important to ensure that those who you share information with also have strict privacy settings activated.

However, as previously explained privacy settings will not protect your information from discovery requests. The only way to truly prevent a social media post form being used as evidence is to not make the post. If you are posting something that is related or could be related to a lawsuit ask yourself if you would want the picture or post to be seen by a judge or jury. If the answer is no, do not post it. While we all want to share our lives with our friends and family, if for example you have a pending personal injury matter, the insurance company would likely be very interested in your vacation pictures as well.

Finally, once something is posted on the internet it is never really deleted as archives of the internet are being continuously made which take snapshots of the internet at certain times. So even if your post is deleted it is likely archived and may still be discoverable.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

By: Dan Rich, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Question: Is “scalping,” or reselling, tickets illegal in Florida?

Remember when your favorite band came to town but you couldn’t go because all of the tickets sold out in less than five minutes, but then were being resold for thousands? I do. The art of reselling tickets at prices much higher than the face value of the ticket is commonly referred to as “scalping,” and is a very real dynamic of the live event scene that unfortunately results in far too many people purchasing tickets at much higher prices than face value.

Before delving into how Florida law handles scalping, regardless of whether the ticket sale occurred online, over the phone or directly in person, it is beneficial to get a quick background.

How do ticket sales even work?

Plainly speaking, a “ticket” is a piece of paper, or more recently an electronic access code, that permits the holder of that paper or access code the right to enter an event such as a concert, a spring training baseball game or that new blockbuster movie. Generally, you can purchase tickets from the venue itself or, from a ticketing agent like TicketMaster or StubHub, who was hired by the venue to sell tickets at face value, plus a fee.

But sales do not stop here, instead, you may be able to get your tickets from a “ticket broker.” A ticket broker is anyone who obtains tickets for the sole purpose of buying tickets and then quickly turning around and re-selling them for a profit. Ticket brokers come in all shapes and sizes ranging from professional ticket brokers who use technology to purchase up large lots of tickets for resale to the retired baseball fan who buys up a batch of tickets and resells them all season in that parking lot across the street.

Whose job is it to regulate ticket resales?

Currently, there is no federal law in place prohibiting scalping. However, fifteen (15) states have implemented their own policies and laws in regards to banning the practice of scalping in some way. The offense of scalping is most commonly classified as a misdemeanor, with penalties ranging from fines and/or up to one (1) year in jail.

In Florida, up until a bit over a decade ago, ticket scalping was illegal. However, in 2006 the Florida Legislature changed the laws, and permitted persons, including ticket brokers, to resell tickets.

What does Florida law provide?

Currently, in Florida it is legal to scalp or resell tickets at prices higher than face value as long as the seller follows the policies and procedures outlined by the Florida Legislature. These policies can be summarized as follows:

• Mandatory Guarantees. Resellers must post specific instructions on their ticket resale websites. The instructions are intended to provide clear guidelines for when a refund will be offered to purchasers, and the seller must also disclose that it is not the issuer, original seller or reseller of the ticket.

• Mandatory Refunds. Resellers must provide refunds to ticket purchasers if the event is canceled, the purchaser is denied admission to the event (for a reason not attributable to their own actions) and if the tickets are not delivered in the manner requested.

• Prohibitions on Location of Resale. Resellers cannot resell tickets for an event on the property where the event is taking place.

• Ban on Reselling Non-Profit Tickets. The resale of tickets to a charity event is strictly prohibited.

• Dollar Surcharge. Resellers are permitted to charge a $1 surcharge for reselling tickets, but only if the tickets being resold are for passage or accommodations on common carriers, to multi-day or multi-event tickets to a park or entertainment complex, or sold through an Internet website that fails to meet the criteria mentioned above.

• Ban on “Bot” Software. Resellers may not use “bot,” or computer software, to buy up tickets. This provision of the Florida law is intended to limit professional scalpers from buying up blocks of tickets to events, impeding purchasers from getting direct access to these tickets.

Therefore, if a person or business violates any of the above-referenced provisions their attempt to resell those tickets will be considered a violation of Florida statutory law, and in turn would make their scalping attempt illegal. By understanding what is permissible and what is prohibited or required, event goers will be able to appear informed and knowledgeable the next time they are approached by a scalper. If you feel you have been wronged or cheated by a scalper, I would encourage you to contact an attorney that has knowledge of these laws and how they apply.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland.  Questions can be submitted to thelaw@cclmlaw.com.

By: Clark, Campbell, Lancaster & Munson, P.A.

Q:  I recently downloaded a mobile app without reading the Terms of Service. What concerns should I have?

A: Although each set of Terms of Service will have its own unique issues, a common concern is what would happen if there is a dispute between the user and developer of the mobile app. A growing number of companies, including Uber and Pokémon Go, require the dispute to be resolved through arbitration according to their Terms of Service.

Arbitration is the process where a dispute between the parties will be resolved outside of the courtroom by a third party, the arbitrator. Although arbitration is conducted outside of the courtroom, it is not necessarily a form of mediation. The arbitration process is actually adversarial much like traditional litigation – one party will be deemed the “winner” and the other party will be the “loser” upon resolution of the dispute.

Some of the advantages of arbitration are as follows:

(1) Flexibility. Unlike traditional litigation, the parties to the dispute are often able to schedule arbitration at their convenience, including evenings and weekends. In contrast, with traditional litigation, the courts generally have overcrowded calendars, whereby the parties have to schedule trial whenever the court has availability.

(2) Simplicity. Discovery is the process where the parties to a dispute obtain information from one another. In arbitration, the scope of discovery is often determined by the parties or by the arbitrator. Unlike traditional litigation, which requires a strict procedural process for discovery, arbitration often results in the discovery phase being simplified or completely bypassed.

(3) Expertise. If effectively chosen, arbitrators tend to be more experienced and skilled in the particular subject matter at the heart of the dispute compared to a judge or jury in traditional litigation.

(4) Potentially Cheaper. Due to the simplification of the discovery phase and the potential for a quick resolution of the dispute, the arbitration process may be cheaper, but this is not guaranteed.

Some of the disadvantages of arbitration are as follows:

(1) Limited Recourse. In arbitration, a party’s ability to successfully appeal an arbitrator’s decision is extremely limited. An arbitration clause will often provide that the arbitrator’s decision is final and binding upon the parties, even if the resolution is unfair. In traditional litigation, a party generally has the option to appeal a court’s decision.

(2) Lack of Information. Since the discovery process is usually simplified or bypassed in arbitration, the parties may discover after the arbitrator’s decision that vital information to the dispute could have been obtained through traditional forms of discovery, such as depositions.

(3) Upfront Costs. In arbitration, the costs are often substantial from the outset, which may foreclose an early settlement to the dispute.

(4) Limitation on Class Actions. An arbitration clause may prevent a party from joining a class action against the other party.

I accepted the Terms of Service for a mobile app and now realize there is an arbitration clause with which I do not agree.  Is there anything that I can do?

Depending on the Terms of Service, a user may have the opportunity to opt out of an arbitration clause so long as the user provides adequate notice. For example, in Pokémon Go, the user may opt out of the arbitration clause if the user provides written notice within 30 days from the date the user accepted Pokémon Go’s Terms of Service. Further, a user may be able to seek remedy in the courts that the arbitration clause is unconscionable, but generally arbitration clauses are looked upon favorably by the courts. Due to the implications of arbitration, it is important for a user of a mobile app to read, or at the very least, skim over the Terms of Service before clicking “I accept.”

The October 20th edition of “The Law” will discuss so-called “vulnerable road user” hit-and-run laws.

By: Clark, Campbell, Lancaster & Munson, P.A.

 Q: When does a poorly drafted contract become unenforceable?

A: Having someone with a background in contracts and litigation help you draft agreements will decrease disputes over the interpretation and effect of your bargains. But even with the best legal assistance, unanticipated circumstances may arise that lead you wishing you had clearer terms in the beginning.

Courts do not want to interfere with freely made deals. If everyone agrees that the contract should have said X even though it really says Y, you can agree to live with X. If the other side wants to take advantage of the mistake but you can prove X was his original intent, you can ask a court to “reform” the agreement to match the intention. When there is a dispute over original intent, however, the original intent must be “clear and convincing” to overcome the clear terms of the written agreement.

Reformation is used for many purposes, including inserting obligations, signatures, and property erroneously not in the original writing or even deleting property erroneously added to the contract. Depending on the facts, you typically have to ask the court within four or five years to reform the deal, but a twenty-year period applies to reformations of deeds.

Similarly, if the other side knew and took unfair advantage of your mistake, reformation may be appropriate. In the absence of unfair conduct, however, courts cannot help resolve a one-sided mistake except to rescind (or undo) the contract and put the parties back in the positions they were in before the agreement. That option is available only if the mistaken party was not negligent and the non-mistake party will not be significantly harmed.

Like with mistakes, if a contract has ambiguities or vague terms but the parties agree what was intended, they can live by whatever legal terms they wish. Where the parties do not agree on interpretation, however, courts will review for two types of ambiguities: those clearly existing on the face of the contract due to insensible or unusual language (“patent ambiguity”), and those that become apparent only when some outside evidence is presented, including how the contract plays out in practice (“latent ambiguity”). Showing that a particular term makes sense in the four corners of the contract but could have multiple meanings to the parties because of other information is the classic latent ambiguity. Patent ambiguity, if not resolvable through reformation of mistake, may lead to an unenforceable contract, because Florida does not allow evidence beyond the four corners of the document to explain the ambiguity. Latent ambiguities by their nature, however, require resorting to outside evidence.

Through these processes, courts look to determine what parties actually intended and avoid preventing receipt of intended benefits.

The June 16th edition of “The Law” will cover when leases become equitable ownership and create property tax liability.

Questions can be submitted online to thelaw@cclmlaw.com