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NOTICE TO CREDITORS PUBLISHED BEFORE A PERSONAL REPRESENTATIVE IS APPOINTED IS EFFECTIVE TO TOLL THE STATUTE OF LIMITATIONS FOR FILING CLAIMS

Is the act of publishing notice to creditors a “power” or a “duty”? According to the 3rd DCA, for purposes of applying the relation back doctrine codified by F.S. 733.601, it doesn’t matter.

In Richard, et al. v. Richard, [the opinion is not yet published, but you can read it here], the 3rd DCA addressed the issue of whether the relation back doctrine applies to give effect to a Notice to Creditors published before the court entered an appointing personal representatives.

The relation back doctrine provides, in pertinent part:

The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.

 F.S. 733.601.

The surviving spouse in Richard filed a claim against the estate more than three (3) months after the first Notice to Creditors was published; outside of the three-month statute of limitations period within which to file claims against an estate.  She argued that the Notice to Creditors was defective because it was published before the personal representatives had been appointed by the court, and therefore her claim was timely.

She further argued that the relation back doctrine should not apply to give effect to the Notice to Creditors because the act of publishing Notice to Creditors is a “duty” and not a “power” of the personal representative.  According to the surviving spouse’s strict interpretation of the statute, the relation back doctrine only applies to the “powers” of a personal representative; not “duties.”  The lower court agreed.

On appeal the 3rd DCA reversed, ruling that the relation back doctrine gives effect to all acts taken by a personal representative prior to his or her appointment, including the publishing of a Notice to Creditors.  Creditors of an estate must file their claim within three months of the first publication of a Notice to Creditors, even where the Notice is published before the court appoints a personal representative.

 

Divorce Frequently Asked Questions

We have updated and added many questions to the divorce practice area of our website.

Take time to look at our Miami Divorce Lawyer FAQ page. We have put together a vast amount of information to help you understand the divorce and family law process. The firm’s goal is to educate and inform so you can make the very best decisions for you and your family.

For an initial consultation with one of our experienced attorneys call 305-372-2877 or 877-858-2977

Two Florida Restaurants ordered to pay 30 Employees over $900,000 for minimum wage, overtime pay and record keeping violations

Two  Florida restaurants and their owners have been ordered to pay 30 employees $934,425.   The agreements resolved a lawsuit that alleged violations of the Fair Labor Standards Act’s minimum wage, overtime pay and record-keeping provisions.

The investigation found that the kitchen employees were improperly classified as exempt from overtime pay and therefore did not get paid for overtime hours they worked (hours over 40 in one week).  Employees were paid tips and received a paycheck that together equaled minimum wage but management required the workers to sign back over the paychecks to the restaurant.  Ultimately the workers only got paid the tips and not minimum wage.  Lastly the lawsuit alleged the restaurants did not keep accurate records of how much employee worked.

All workers should be treated fairly.  If you feel you have been a victim of unpaid overtime or other Fair Labor Standards Acts violations at your workplace contact our employment lawyers at  877-858-2977 for a free, confidential consultation or visit our website.

You should act quickly to preserve your rights. The overtime law has a two-year statute of limitations for the recovery of back pay. The Fair Labor Standards Act, or overtime statute, does have a three-year statute of limitations in situations where it can be established that the employer willfully violated the statute by failing to pay an employee overtime pay.

Source: http://www.dol.gov/whd/media/press/whdpressVB3.asp?pressdoc=Southeast/20110818.xml

Sexual Harassment, Retaliation Lawsuit

A sexual harassment settlement for over $500,000 was reached this week by the EEOC involving a lawsuit against an acute care facility.   The sexual harassment lawsuit was originally filed in 2010 concerning reports that a male emergency room staff member sexually harassed female employees at the hospital by having graphic discussions of sexual activities, having touched them inappropriately, propositioned them for sex, and engaged in other inappropriate behavior.

According to the EEOC several female victims were retaliated against and others quit to avoid being in this hostile environment after complaining of sexual harassment to management.  Hospital management ignored the complaints and did not fire the offending staff member until 2009, nearly two years after the first complaints were reported.

No employee should be subject to such conduct at their place of work. If you feel you have been a victim of sexual harassment at your workplace contact our sexual harassment lawyers at 877-858-2977 for a free, confidential consultation or visit our website.

It is critical for the victim of sexual harassment to maintain copies of the complaints made to the employer as well as notes from any meeting with the employer or human resources department. Emails and text messages are vital evidence in many of these cases.

Source http://www.eeoc.gov/eeoc/newsroom/release/11-16-11b.cfm

Divorce Practice Area is on Squidoo

The divorce practice area of the firm has created a Squidoo page : Click Here For A Preview
We are working on getting articles of interest published on the site.

Welcome to the Law Offices of Hoffman & Hoffman P.A. firm blog

Welcome to the Law Offices of Hoffman & Hoffman P.A. firm blog. Our firm is comprised of Divorce, Family Law, Estate Planning, Probate, Employment Law, Condo Law, Aviation Law and Litigation lawyers. The lawyers at the Law Offices of Hoffman & Hoffman P.A. have experience handling and litigating tough cases in the state of Florida including probate litigation such as will contests, divorce matters ranging from simplified divorce to child-support modifications, condominium deposit and condominium leak disputes, employment matters including sexual harassment cases, whistleblower complaints and over time lawsuits. We have offices in Miami, Naples, Michigan and the Florida Keys.