My husband’s pharmacy, Palm Beach Compounding Pharmacy, has moved its compounding operations to Three Palms Center in Jupiter, Florida (2151 S. Alternate A1A, Suite 1500).  The new facility is larger and will provide for more efficient workflow.  We have also constructed a state-of-the-art clean room for sterile compounding and are in the process of obtaining our sterile compounding permit from the State of Florida.

A compounding pharmacy is a specialty pharmacy that supplies people and pets with medicines that are custom-made for them based on a doctor’s prescription.  The medicines are usually not available from a regular drugstore and include the following:
         •Items that are no longer or never were commercially available
        •Different forms of a medication.  For example, providing a liquid for a patient who has difficulty swallowing pills
          •Different dosages (smaller or larger) as needed for people who metabolize medicines at different rates
       •Combinations of two or more drugs compounded into a single capsule (which reduces the number of pills taken on a daily basis and may reduce drug costs)
      •Hormone replacement therapy (BHRT) for men and women in the form of creams, capsules, troches (lozenges), etc.


The pharmacy is open Monday through Friday from 9-5 and the phone number is (561) 741-1191 (website is www.palmbeachcompounding.com).  I am also a licensed pharmacy technician and have an office right next to the pharmacy.  If you have any questions about compounding pharmacy, just give us a call.  As always, if you need to retain me for any legal matters, you can reach me at (561) 602-4447 or liz@elizabethmontgomerylaw.com.

This blog entry is simply meant to entertain.   I came across the following opinion years ago and couldn't believe the way the judge wrote about the lawyers.  I thought it was hilarious. 

Bradshaw v. Unity Marine Corporation, 147 F.Supp.2d 668 (S.D. Texas 2001), was a case brought by an allegedly-injured seaman against the dock owner allegedly responsible for his injuries.  In his opinion on the defendant's motion for summary judgment, Judge Kent commented on the attorneys' "work" as follows:

"Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact--complete with hats, handshakes and cryptic words--to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins.
. . .

Defendant begins the descent into Alice's Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims.  See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n. 1 (5th Cir.1998).  That is all well and good--the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court's water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie. Finally, Defendant does not even provide a cite to its desired Texas limitation statute.  A more bumbling approach is difficult to conceive--but wait folks, There's More!
. . .

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is GRANTED .

At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action versus his alleged Jones Act employer, Defendant Unity Marine Corporation, Inc. However, it is well known around these parts that Unity Marine's lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what's left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action."

Hope you enjoyed it!

Please contact me for your legal needs in Jupiter, Palm Beach Gardens or throughout Florida, at (561) 602-4447 or liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com or www.jupitercollectionsattorney.com.

Florida’s lien law (Chapter 713 of the Florida Statutes) was enacted to protect owners of real property by putting limits on their liability to lienors.  The law also prevents unjust enrichment of owners at the expense of lienors.  If you own property upon which you are making improvements, you can be liable to those who make improvements to the property or who furnish materials for the improvements.  The lien law provides a way to limit your exposure to this liability by making “proper” payments during the course of the improvements.  The proper payments defense limits an owner’s liability for liens to the price of the contract between the owner and the general contractor.  In practice, this defense means that if the owner fulfills its obligations under the construction lien law, its liability for liens will not exceed the contract price.

As a property owner, one way to protect yourself from liens is to make sure all potential lienors have been paid to the extent that you have paid your contractor.  This is accomplished by obtaining a release of lien from all persons who served notices to owner (November blog).  Another is to secure releases of lien from the contractor.  Also, before making partial payments, you should obtain a contractor’s affidavit indicating that potential lienors have been paid. Be aware that, if you pay a lienor who served you with a notice to owner without obtaining a release from that lienor, such payment is not a proper payment as to that lienor.  You must obtain a release from all persons or parties who served a notice to owner!

Prior to making the final payment to your contractor, you should obtain a contractor’s affidavit (F.S. 713.06(3)(d)), which states that all potential lienors have been paid (or which lists those who are unpaid).  If you make a final payment without the benefit of a contractor’s final affidavit, there is a serious risk that you will have to pay subcontractors or material suppliers who were not, in fact, paid by the contractor.

Another consideration is that you should not make any payments to the contractor after the expiration of a notice of commencement (usually 1 year from the date the notice is recorded)(F.S. 713.13). Any payments made to the contractor after the notice of commencement has expired are not “proper” for the purpose of claiming the proper payments defense.

Any payment that is not made in compliance with these three steps is not a “proper payment”, and will not reduce the owner’s exposure for liens. Merely claiming that you made all payments you thought were due is not enough. You should obtain the necessary releases and contractor affidavits as you make payments through the course of a construction project so that you will have the proper documentation to claim a proper payments defense if necessary.  As an owner, it is important to make sure that the payments you are making on the project are made “properly” in order to reap the benefit of the proper payment defense.

Florida's Lien Law is complicated and it contains many requirements and nuances that must be followed.  If you are interested in retaining my services relating to Florida's Lien Law in Jupiter, Palm Beach Gardens or throughout Florida, please feel free to contact me at (561) 602-4447 or liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com or www.jupitercollectionsattorney.com.

Florida Statutes section 83.49, outlines the law with regard to the return of a residential tenant’s security deposit.  Many people are unaware of the strict requirements and deadlines contained within the statute.  If a landlord plans to make a claim against a former tenant's security deposit, the landlord must follow the law or risk forfeiting the entire deposit.

After the tenant vacates the rental property, the landlord has only 15 days to return the security deposit if the landlord does not intend to make a claim on the security deposit.  If the landlord does intend to make a claim against the security deposit, the landlord has "30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim."  F.S. s. 83.49(3)(a).  The statute even contains a form notice as follows:

This is a notice of my intention to impose a claim for damages in the amount of $______________ upon your security deposit, due to ___________________. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address).

If the landlord does not give the required notice within 30 days, the landlord forfeits the right to impose a claim against the security deposit.  Keep in mind, though, that even if the landlord forfeits the right to the security deposit, the landlord may still have a claim for damages and can file a lawsuit to recover those damages.

If the landlord intends to make a claim against a security deposit and sends the required notice, the tenant has only 15 days after receipt of the notice to send a written objection to the landlord.  If no objection is made, the landlord may deduct the amount of his or her claim and send the balance, if any, to the tenant within 30 days after the date of the notice of intention to impose a claim.  F.S. s. 83.49(3)(b).

Subsection (c) of the statute provides for attorney's fees in the event of litigation.  If either party files a lawsuit to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney.

If you are interested in retaining my services in Jupiter, Palm Beach Gardens and/or throughout Palm Beach County and the State of Florida to address security deposit issues or other landlord/tenant issues, please feel free to contact me at (561) 602-4447 or liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com.

The preparation and proper execution of a last will and testament is probably not something that you think about often, but it is important.  I have been working with some clients in preparing and revising their wills and thought it might be a good idea to provide a little information on the subject.

Florida Statutes s. 732.502 pertains to the execution of wills and provides as follows:

732.502  Execution of wills.  Every will must be in writing and executed as follows:

(1)(a)  Testator’s signature –

1.  The testator must sign the will at the end; or

2.  The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

(b)  Witnesses – The testator’s:

1.  Signing, or

2.  Acknowledgment:

a.  That he or she has previously signed the will, or

b.  That another person has subscribed the testator’s name to it

must be in the presence of at least two attesting witness.

(c)  Witnesses’ signatures.  The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

. . . . .

(4)  No particular form of words in necessary to the validity of a will if it is executed with the formalities required by law.

According to Florida law, a will can be witnessed after it is signed as long as the statute is followed with respect to the acknowledgement contained in F.S. s. 732.502(b).  It is also interesting to note that there is no statutory form or particular wording that is required as long as the will is executed properly.  Common language in a will provides for the payment of taxes and other expenses.  If taxes are owed from the estate, the government will collect what it is owed no matter what language is contained in the will!

Here is another important aspect of will execution.  Some states, including Florida (Fla.Stat. 732.502), have adopted a statute that provides for the “proving”, or establishing the authenticity) of a will without the need for testimony.  This is accomplished by an acknowledgment of the testator, or maker of the will, along with affidavits or statements under oath of the witnesses to the will.  The acknowledgment and affidavits are made before an officer authorized to administer oaths by the state, such as a notary public.  One of the greatest benefits of a self-proving will is that witnesses and beneficiaries are not required to appear in court to testify that the will is valid.  Having a self-proving will can be helpful if a witness cannot be located or is deceased.

Most people make copies of their original will and keep the original in a safe place.  It is a good idea to mark any copies with the location of the original will.  Good places to store the original will are with the attorney who drafted it or a home safe.  Some people store their original will in a safe deposit box.  However, this can be tricky for the person named to execute the will because most financial institutions have strict rules about who can access a safe deposit box and a court order may be necessary.

If you are interested in retaining my services in Jupiter, Palm Beach Gardens and/or throughout Palm Beach County and the State of Florida to prepare or change a will, please feel free to contact me at (561) 602-4447 or liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com.

Does writing "paid in full" on a check discharge a debt?  It depends.  While it is true that creditors frequently settle debts for less than the full amount due, for the settlement to be valid, the debtor and the creditor have to agree to the terms.  In other words, a debtor cannot discharge a debt by unilaterally declaring a partial payment to be payment in full simply by writing the words "paid in full" on his check or payment unless the creditor agrees.

In the case of Republic Funding Corporation of Florida v. Juarez, 563 So.2d 145 (Fla. 5th DCA 1990), a real estate broker sued an owner-seller of real property for unpaid commission after depositing a check marked "paid in full, full payment."  The owner-seller pleaded the affirmative defense of accord and satisfaction and moved for summary judgment which was granted and then, but then reversed because the court found that there was no agreement on the part of the broker to accept anything other than his full commission.

Accord and satisfaction was explained in the case of Owner-Operator Independent Drivers Association, Inc. v. 4 Points Logistics, LLC, 2007 WL 2071389 (M.D. Fla.), as follows:

A defense of accord and satisfaction involves a two-step process of proof that (1) the parties mutually intended to effect settlement of an existing dispute by entering into a superseding agreement. . . and (2) there was actual performance with satisfaction of the new agreement which acted to discharge the debtor's prior obligation.  In short, under Florida law, an accord and satisfaction must contain the elements of a normal contract, which include offer, acceptance and consideration.

See also Florida Statutes §673.3111, Uniform Commercial Code, pertaining to accord and satisfaction by use of instrument or check. 

A debt can be discharged by writing "Pain in Full" on a check, but only after the elements of accord and satisfaction have been met which involves proving the elements of that defense.  If you are interested in retaining my services in Jupiter, Palm Beach Gardens and/or throughout Palm Beach County and the State of Florida, please feel free to contact me at (561) 602-4447 or liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com.

Most people think that they are entitled to a jury trial (as opposed to a bench trial where the judge is the only finder of fact) any time a case goes to trial.  That is not true.  The Constitution provides for a trial by jury only in certain circumstances.

The right to a jury trial applies only to legal remedies and not to equitable causes of action.  381651 Alberta, Ltd. v. 279298 Alberta, Ltd., 675 So.2d 1385 (Fla. 4th DCA 1996).  Examples of equitable causes of action are foreclosure of a construction lien, foreclosure of a mortgage, and a cause of action for unjust enrichment.  An action seeking a money judgment is traditionally a legal cause of action and, therefore, the right to a jury trial would apply.  Where both equitable and legal causes of action arise in the same lawsuit, there is still a right to a jury trial on the legal causes of action.  If the causes of action are so intertwined, a jury trial may be afforded for all causes of action, both legal and equitable.

The right to a jury trial on issues so triable may be waived.  In many commercial contracts, there may be a provision that the parties waive their right to a jury trial.  As with any written document, be sure to read all provisions before signing.  Anyone who signs a document is deemed to have read all the terms of it and will be bound by those terms.

A party may also waive the right to have a jury trial by not making a timely demand for it.  A jury trial must be demanded within ten days after service of the last pleading directed to that issue.  The plaintiff must demand a jury trial in its initial pleading.  The demand for a jury trial may be included within any p leading served within the prescribed time, or it may be made by a separate document titled "Demand for Jury Trial".  It is interesting to note that a demand for a jury trial may not be withdrawn without the consent of all parties.  Fla.R.Civ.P. 1.430.

The right to a jury trial in civil matters is not as cut and dry as some may think.  The foregoing is a brief overview of some of the considerations to be made when deciding to have a jury trial or a bench trial.

If you are interested in retaining my services in Jupiter, Palm Beach Gardens and/or throughout Palm Beach County and the State of Florida, please feel free to contact me at (561) 602-4447 or liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com.

An equitable lien is a remedial tool used to prevent inequity of one party as against another.  It may be used as a means of enforcing, against a piece of property, a party's obligation which has resulted in a benefit to that property.  The obligation may arise through an agreement relating to the property which contemplates the use of the property as security for an agreement or where circumstances are such that consideration of rights and justice require that the property serve as security for the obligation.  The imposition of an equitable lien upon specific property is particularly appropriate where a creditor has lost its security in that property in reliance upon a false representation of one who later claims a superior interest in the property.

Here's an example of how this situation might arise.  A property owner contracts with a general contractor to make certain improvements on the property owner's property.  After the general contractor begins performance on the contract, the property owner contracts to sell the property to a third party.  The third party is informed of the existence of the contract between the property owner and the general contractor and of the general contractor's intent to file a construction lien against the property prior to the third party taking title to the property.  The third party convinces the general contractor not to file its construction lien with assurances that the general contractor will be paid.  The general contractor does not file its construction lien within the time frame outlined in Chapter 713, Florida Statues, losing its lien rights.  The third party does not pay the general contractor.

Based on this scenario, the courts may impose an equitable lien against the property in favor of the general contractor to prevent the third party from being unjustly enriched.  The doctrine of unjust enrichment is a recognition that a person is accountable to another on the ground that if the former were not required to do so, he would unjustly benefit, or the other would unjustly suffer loss.  Golden v. Woodward, 2009 WL 1782314 (Fla. 1st DCA 2009).

An action to enforce an equitable lien must be brought within one year from the furnishing of labor, materials or services.  F.S. 95.11(5).

If you are interested in retaining my services relating to claiming or defending an equitable lien  (or any other matter) in Jupiter, Palm Beach Gardens or throughout Florida, please feel free to contact me at (561) 602-4447 or  liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com.

If you are selling goods or services personally (selling household items, for example), but especially if you are selling goods or services as a small business, and accepting payment in the form of a check, you are bound to experience at some point receiving a worthless check.  Florida Statutes section 68.065 provides a civil remedy for anyone who receives a worthless check. 

Subsection (1) of this section defines a "payment instrument" as a check, draft, order of payment, debit card order, or electronic funds transfer.  Subsection (2) provides for the recovery of  " bank fees actually incurred by the payee in the course of tendering the payment, plus a service charge of $25 if the face value does not exceed $50; $30 if the face value exceeds $50 but does not exceed $300; $40 if the face value exceeds $300; or 5 percent of the face value of the payment instrument, whichever is greater."  It should be noted that the right to collect bank fees may be claimed without filing a lawsuit.

If you choose to file a civil lawsuit to collect payment on a worthless check (or other payment instrument), before filing such a lawsuit, a written demand must be delivered by certified or registered mail to the maker or drawer of the payment instrument.  The written notice must be substantially in the form of the notice found in subsection (4) of F.S. 68.065.  If successful in such an action, the maker or drawer of the payment instrument may be liable to the payee, in addition to the amount of the payment instrument, for damages amounting to three times the amount of the payment instrument and, in no case, for damages less than $50.00. 

Another provision of the statute states that "the maker or drawer is liable to the payee for all attorney fees and collection costs incurred by payee as a result of the payee’s claim."  It is always a plus when the defendant has to reimburse the plaintiff for its attorney's fees and costs which will be included in the judgment. 

Sometimes it is not too difficult to obtain a judgment.  Then, the judgment creditor has to collect the judgment or the money awarded from the judgment debtors which is sometimes a more difficult task.  If you are interested in retaining my services relating to obtain and collect a money judgment Jupiter, Palm Beach Gardens or throughout Florida, please feel free to contact me at (561) 602-4447 or  liz@elizabethmontgomerylaw.com or visit my website at www.elizabethmontgomerylaw.com.