Effective July 1, 2014, the State of Florida banned texting while operating a motor vehicle on Florida’s streets.  Identified as Section 316.305, Florida Statutes, the law applies when the motor vehicle is in motion and bans “manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device for the purpose of nonvoice interpersonal communication, including, but not limited to, communication methods known as texting, e-mailing, and instant messaging.”

It’s interesting to note that the law does not apply when your motor vehicle is stationary, so you are free to read and write texts and emails while waiting for a light to change, without exposing yourself to this nonmoving traffic infraction.

The statute specifically implies that a person may not operate a motor vehicle while manually typing into a cell phone or while sending or reading data for the purpose of nonvoice interpersonal communication. As used in this section, the term “wireless communications device” means any handheld device used or capable of being used in a handheld manner, that is designed or intended to receive or transmit text or character-based messages, access or store data, or connect to the Internet or any communications service as defined in s. 812.15 and that allows text communications.”

I’ve bold-face typed the “nonvoice interpersonal communication” phrase because this law only applies to texting, emailing and the like – not to talking on a phone while driving. It does not appear to violate the statute when a driver holds a cell phone to her ear or in front of her mouth, while driving.

The statute also says it does not apply to other situations such as when ambulance crews drive and type in communications about a patient’s conditions, or to times when citizens type on their phone to report an emergency. [But, don’t we all CALL about criminal activities and emergencies?]

The statute also does not apply to receiving messages related to the operation or navigation of a motor vehicle which seems to place the operation of GPS devices outside this statute.  Actually, using navigation aids are specifically authorized by the statute.  You can also read data provided by your automobile, and from a radio broadcast.   Interestingly enough, one exception allows you to use a cell phone application if you are reading or selecting the buttons that activate, deactivate or initiate that phone feature or function.

As of today, law enforcement officers are not authorized to issue tickets simply because a motorist is observed violating this statute. There must first be another chargeable traffic offense.

During the current Florida legislative session, a bill amending this law has been introduced.  Senate Bill 76.  Although a Bill does not become law until passed by both chambers of the Legislature and then signed into law by the Governor, this bill could reflect upcoming changes in the “driving while distracted law.”  In its current form and if ultimately passed into law, it would become effective on October 1, 2019.

This Bill proposes to amend Section 316.305 with changes such as these:

1. The law would be broadened from merely texting or emailing to likewise ban all activity that distracts drivers; and,
2. An exception will be added whereby the use of hands-free devices are encouraged and could be used to get the ticket dismissed, and,
3. Law enforcement would be authorized to stop drivers who are identified as being distracted from driving.

In this writer’s opinion, Senate Bill 76 has one obvious flaw because SB76 proposes the following wording:

“A person may not operate a motor vehicle when driving while distracted.”  “Driving while distracted” is specifically defined in SB76, as “the inattentive operation of a motor vehicle while the vehicle is in motion.  Inattentive or distracted driving conduct includes reading, writing, performing personal grooming, applying a beauty aid or similar products, interacting with pets or unsecured cargo, using a personal wireless communications device, or engaging in any other activity, conduct, task, or action that causes distraction.”

From our reading of the last, broadly stated phrase, law enforcement could reasonably interpret that a driver who’s looking for an address on a mailbox would be guilty of engaging in an activity that causes distraction.  Driving while looking at your Google Maps printout (like the old-fashioned idea of looking at a map) would definitely run afoul of this very broadly worded phrase. Perhaps, every driver distraction should not be exposed to a penalty as suggested here.  Certainly, leaving such determinations to law enforcement’s discretion is reasonably calculated to lead to future litigation. Regardless, changes to Florida’s Texting While Driving Ban are probably coming this spring.

Winning in (or out of) civil court is the ultimate objective for our clients, but the winner of a legal dispute does not always reveal himself at the end of a trial.  Paying attorney’s fees after a trial often decides the ultimate winner, regardless of the result handed down by the judge after trial.

Before ever filing a lawsuit (during a so-called “pre-suit phase”) clients may retain lawyers to make contact with another company or person.  Pre-suit discussions may take place, possible settlements may be discussed, or other topics may be broached, but for purposes of this writing, a dispute arose and was not resolved; hence, one party files a lawsuit.

To file a lawsuit, a person should ALWAYS hire an attorney to file it (for no better reason than an attorney will be trained on all the rules of being in court and, having no such training, a client, if unrepresented, places herself at a huge disadvantage from the very beginning).  Attorneys charge professional fees for their work and, so, the client will become obligated to pay attorney’s fees as part of retaining her lawyer.

The attorney presents the lawsuit to the appropriate Clerk of Court which is the elected county official in charge of maintaining the judges’ records and the county’s Official Records.  A lawsuit is recorded, assigned a case number, and the process starts.  Notably, the Clerk of Court charges to set up and maintain a file.  Nowadays, it’s common for a civil dispute filing fee to cost around $400.00, but when lawyers talk about “costs,” they generally talk about these kinds of costs, i.e., litigation costs such as filing fees, but they don’t necessarily include their own professional fees in this category.

“Attorney’s fees” are thought of separately, and an attorney can charge for each hour he or she works (using an hourly rate agreement) or charge a one-time payment for the entire civil case (using a flat rate fee agreement).  In personal injury cases, attorneys may ethically work on a percentage basis, basing their attorney’s fees on the outcome or otherwise contingent on the outcome.

At the end, as the “winner,” you’ll want to be made whole and reimbursed for these attorney’s fees.  Can you?  It all depends on whether a statute or a contract says so because, in Florida, each party to a lawsuit is legally bound to pay his or her own attorney, UNLESS there’s a statute or contract that says otherwise.  Lease Agreements between landlords and tenants most commonly have “attorney’s fees provisions.” These provisions say that, if there’s a court case, the loser shall reimburse the winner for the winner’s attorney’s fees.  Some statutes say the same thing.  So, in the end, the “winner” may win the lawsuit, but lose overall because the winner has to pay his attorney a large sum for representing him AND pay for his adversary’s attorney.

In civil lawsuits seeking compensation, a party can shift the burden of paying attorney’s fees to their adversary using a statute designed for such use. Businesses can avoid this problem by inserting “attorney’s fees provisions” in this proposals, contracts and invoices, thereby obligating a customer to reimburse the business for attorney’s fees if the business has to go to court to collect on an outstanding invoice.  As a matter of practicality, telling a customer she may owe the invoice, plus litigation costs, plus attorney’s fees, may turn a $200 invoice into a $2,000 judgment that the customer may want to avoid by paying $200.

Keep in mind, winning includes winning the battle over attorney’s fees – sums that can add up to thousands of dollars.

FAMILY LAW:  When it comes to child visitation, Florida has a new law, and it just went into effect on January 1, 2018.   Florida law assumes that parents should have shared parental responsibility with their minor children, and this comes into play in child custody, paternity and divorce cases.  Basically, a parent initiating such an action should assume the other parent will be awarded “shared custody,” unless the parent can prove it would be dangerous for the child to be with the other parent.  This is stated in the most general sense, and the term “custody” is not normally used anymore.

Parents will have “shared custody” of their children in Florida.

But what about spending time with the children?  Various terms have been used over the past few decades, but Florida law now uses the term “time sharing” to describe a parent’s visitation time with his or her minor child.  Time sharing directly affects child support.  For example, in a divorce case, the percentage of time a parent has with any particular child goes into a formula (using other factors such as monthly gross income) to calculate how much child support one parent may have to pay to another.

Previously, in its administrative actions, the Florida Department of Revenue (Child Support Enforcement) could initiate administrative actions designed to set up child support but, before this year, the DOR had no authority to set up time sharing or visitation. Now, it can.

Effective January 1, 2018, pursuant to the Florida Legislature’s work in 2017, DOR’s Child Support Program will incorporate parenting time plans, which have been agreed to and signed by both parents, into administrative orders that establish paternity or establish or modify support. Parenting time plans include a so-called “Standard Parenting Time Plan,”  as well as other parenting time plans that have been agreed to and signed by the parents. Parenting time plans are taken into consideration when the amount of child support is calculated under Florida’s child support guidelines.

Once a parenting time plan is established and included in a child support  order, changes to or enforcement of the plan may only be made by the court. The Child Support Program cannot modify or enforce a parenting time plan. According to the DOR, if parents do not have an agreed upon parenting time plan and do not agree to a parenting time plan at the time the administrative order is established or modified, a parenting time plan will not be included in the support order. In these cases, the Child Support Program will provide a form that can be used to petition more parenting time plan for each parent, which can be filed by either parent in court to establish a parenting time plan.  See http://floridarevenue.com/childsupport/parenting_time_plans/Pages/default.aspx

Holiday Car Accidents.  Honestly, we hope that you and yours are safe during this 2017 holiday period through the end of the year. We hope all of you enjoy times with family without the burden of a car accident or traumatic injury.  If, however, you should find yourself in an accident, then please let us suggest that you immediately seek medical care on the same day as the accident, even for minor injuries.  Just “get checked out.”  For most, your auto insurance will pay 80% of the Emergency Room bill, (depending on the amount of your deductible), but the big advantage is that you get your loved-ones checked out to ensure nothing more severe is about to happen.  For example, a seemingly innocent blow to the head during a car accident can result in a catastrophic brain bleed, albeit infrequently. Early detection makes a huge difference in that kind of situation.  All of us at MYERS Law wish you Happy Thanksgiving!  And as a bit of legal advice:  Buy uninsured motorist insurance coverage if you don’t already have it. 

Preparing your Last Will and Testament is a smart way to control the disbursement of  your wealth to your family and to selected charities.  Without a will, Florida law dictates otherwise and, in some cases, the results will surprise you.  In one of our cases, our client died, having a bride from his second marriage. During his 10 year first marriage, he had a son but, upon divorcing and remarrying, our client never took the time to prepare his Last Will and Testament, probably because he thought himself much too young to die.  A tragic car accident changed all that and, according to Florida law, his new bride of 5 years did NOT inherit our client’s home. He had not placed her on the deed either.  Instead, our client’s son (from the first marriage) became the lawful owner of the marital home.  Preparing a will could have avoided this unusual result.  We prepare wills. Call us today (239) 690-3322.

Hurricane Irma devastated the Southwest area of Florida, causing billions of dollars in damages in Fort Myers, Naples, and surrounding areas.  As a law firm with a Board Certified civil trial attorney, we are acutely aware that property damages will lead to contract disputes, such as when landlords disagree with tenants, and when owners are entering into contract with contractors for home repairs.  Part of our services include reviewing contracts for those who don’t commonly contract for repair services or, on the other hand, helping contractors who find themselves at odds with an unhappy homeowner.

Make sure all contractors are licensed with the State of Florida.

Ouch!   If a marriage ends and divorce becomes a reality, an attorney should lead you through the complicated maze of legal issues presented in divorce court, especially if child custody and child support will be part of the discussion. There are two ways to pay divorce attorney’s fees in such cases:  a flat fee and an hourly rate. No lawyer should agree to take a percentage if and when he or she is successful with the divorce litigation. In other words, “contingent fee agreements” are not applicable here, even though they are very common in personal injury cases.  Additionally, there are two types of costs a client will have to pay:  attorney’s fees and litigation costs. Oftentimes, a lawyer will ask for prepayment in the form of a “retainer.” If the retainer is to be non-refundable, the lawyer is required to obtain the client’s prior consent and agreement in writing.  As far as “flat fees” are concerned, this can be a one-time payment that pays the attorney’s professional fees.  For example, a Fort Myers lawyer might agree to represent a woman in a divorce case, and accept a one-time payment of $10,000, for example, to cover all the time the lawyer spends on the case, even if it takes a year-and-a-half to litigate. Litigation costs, such as the court filing fee of approximately $400, may be paid or billed separately.  Retaining an attorney on “an hourly rate” means the client pays a retainer (usually) and agrees to pay the attorney $250 per hour, for example, for each and every hour the lawyer is actively engaged in working on the divorce.  Remember: lawyers sell their time.  Again, litigation costs, such as the cost of hiring court reporters, are charged and billed separately.  Normally, with an hourly rate case, the client receives a bill, periodically, identifying what work has been done, and the time taken to do it, plus costs expended during that  billing period.  So, in summary, to hire a lawyer for a divorce, you may pay a retainer at first, and you will probably be billed for costs, even though the retainer can be used for pre-paid litigation costs as well (depending on the Fee Agreement entered into), and a client can pay the lawyer either with one lump sum up front OR pay the lawyer by the hour during the pendency of the litigation.

Notably, the Florida Bar has certified Attorney R Frank Myers as a Board Certified in Civil Trial Law.  Congrats Frank!

When July 1st came around, 161 of Florida’s newest laws took effect.  One law set a sales tax holiday (on certain purchases, such as clothes and school supplies) for August 5, August 6, and August 7.  Another reduced property taxes.  For those of us trial lawyers, we noted that Florida law now allows a person who is unable to take care of himself or herself to obtain a permanent exemption from serving on jury duty, with the proper documentation from his or her doctor.

Myers Law is set up in the heart of the GATEWAY area of Fort Myers, Florida — near Lehigh Acres.  We’re now located at 12331 Towne Lake Dr. #9, next to Gateway Boulevard — next to Subway and near Boulevard Deli.  We’re out here where people live and work, not downtown, for the convenience of those with legal disputes, whether civil litigation or family law.  Come see us for competent, professional legal services!