Florida applies a fair version of the Apex Doctrine

Florida applies a fair version of the Apex Doctrine

Portrait of Christopher Cabrera

Christopher Cabrera

The “apex doctrine” protects high level officers from the risk of abusive discovery. Prior to the opinion issued by the Florida Supreme Court in the case of In re: Amendment to Florida Rule of Civil Procedure 1.280, Florida Courts applied the “apex doctrine” to protect only high level government officials. This application of the “apex doctrine” meant that high level corporate officers were at risk of being forced into discovery proceedings although they had no personal knowledge in the case or controversy.

After the decision handed down on August 26, 2021, the version of the “apex doctrine” that protects both high level government and corporate officials was codified in Florida Rule of Civil Procedure 1.280. Although federal courts have always broadly applied the “apex doctrine” to both high level government and corporate officers, Florida has become only the fifth state to formally adopt this version of the “apex doctrine.”

In Florida, the issue of whether the “apex doctrine” applied in the corporate context arose in the case of Suzuki Motor Corp. v. Winckler, 284 So. 3d 1107 (Fla. 1st DCA 2019). In that case Mr. Winckler sued Suzuki Motor Corp alleging that he was injured in a motorcycle accident caused by a failure of the motorcycle’s brake system. During discovery, Winckler sought to depose Osamu Suzuki, the chairman of the company and former CEO. In response, Suzuki Motor Corp essentially argued that the apex doctrine protected Mr. Suzuki from having to participate in the deposition because he had no personal knowledge in the issue and there were better suited individuals within the company to answer to deposition questions. The trial court concluded that the “apex doctrine” did not apply to private corporations and the First District Court of Appeal affirmed the trial court decision explaining that, “No Florida court has adopted the apex doctrine in the corporate context.”

The Florida Supreme Court responded to the Suzuki case by extending the “apex doctrine” protection to high level corporate officers. The amendment of Florida Rule of Civil Procedure 1.280(h), now states that “[a] current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition.” The Court reasoned that the “efficiency and anti-harassment principles animating [the apex doctrine] are equally compelling in [both government] and private sphere[s].” In addition, “apex officials ‘are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the courts.’”

Procedurally, a party may request an opposing party officer subject themselves to a deposition. The opposing party then has the burden of establishing that the officer is a “high level” officer and must submit an affidavit stating why they “lack unique, personal knowledge of the issues being litigated.” This issue will be determined according to the unique facts of each case. After the affidavit is produced, the burden shifts to the party seeking the deposition to show that other discovery has been exhausted, and that the officer has unique, personal knowledge of discoverable information.

This decision ensures that both government and corporate “high level” officers are protected from the potential for abusive and harassing deposition requests.

  • Florida Supreme Court Case: In re: Amendment to Florida Rule of Civil Procedure 1.280
  • Website blog article: Florida Supreme Court Adopts Apex Doctrine Protecting High Level Corporate and Government Officers
The Public Policy of Enforcing Non-Compete Agreements During the COVID-19 Pandemic

The Public Policy of Enforcing Non-Compete Agreements During the COVID-19 Pandemic

Portrait of Cassidy Heitman

Cassidy Heitman

From zoom calls to masks and everything in between, the world has changed since the COVID-19 pandemic. However, public policy favoring the enforcement of reasonable covenants not to compete remains unchanged.

On September 1, 2021, the Third District Court of Appeal held in favor of GFA International, Inc. (“Appellant”). Eric Trillas and Trillas Consulting Engineers (“Appellee”) was employed by Appellant for approximately five years and entered into a non-solicitation and non-competition agreement. While employed by Appellant, Appellee formed Trillas Consulting Engineers (TCE) and diverted work from Appellant. GFA Int’l, Inc. v. Trillas, 46 Fla. L. Weekly D1946 (Fla. 3d DCA September 1, 2021). In 2020 Appellee left Appellant’s employment and continued to operate TCE while working with Appellant’s clients.

The Third District Court reversed and remanded the trial court’s decision, denying the motion for a temporary injunction enjoining Eric Trillas and Trillas Consulting Engineers (“Appellee”) from violating a non-compete agreement. The trial court found that there was insufficient evidence of irreparable injury based on possible recovery of monetary damages  showing an adequate remedy at law. Additionally, the trial court found that the relief sought by the Appellant did not serve the public interest because it prevented an individual from practicing their profession during the pandemic.

Before the COVID-19 pandemic, Florida public policy favored the enforcement of reasonable covenants not to compete and was governed by § 542.355 of the Florida Statutes. The Third District Court of Appeal found that §  542.335(1)(g) of the Florida Statutes conflicted with the trial court’s decision.

Section 542.335(1)(g) states, “In determining the enforceability of a restrictive covenant, a court … [s]hall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.”

The Third District Court of Appeal found that denying the injunction based on individualized hardship violated public policy. The policy reasoning is that the enforcement of restrictive covenants serves the public interest because “it demonstrates that courts will uphold agreements, and employers can rely on non-compete agreements to protect their legitimate business interests.” Quirch Foods LLC v. Broce, 314 So. 3d 327 (Fla. 3d DCA 2020).

Arguably, the Third District Courts’ reasoning protects companies who provide confidential information to their employees because it allows employers to know that the information is protected if an employee resigns or is terminated.

In light of this decision, in a world that seems to be constantly changing, one thing remains, which is the enforceability of reasonable non-compete agreements.

Covid-19’s Impact On Speedy Trial Criminal Proceedings

Covid-19’s Impact On Speedy Trial Criminal Proceedings

Portait of Gabriella Bovo

Gabriella Bovo

On August 26, 2021, the First District Court of Appeal held in favor of the State of Florida (the “Appellant”), and reversed and remanded the trial court’s order granting Brandy Lee Johnson’s (the “Appellee”) Motion for Discharge based on the Appellant’s failure to file an information within 174 days from her arrest. In Florida, under Florida Rule of Criminal Procedure 3.191(a), “all defendants are entitled to be brought to trial within 175 days of arrest without demanding the right to a speedy trial if the crime charged is a felony.” Wallace v. State, 189 So. 3d 1022 (Fla. 3d DCA 2016). The Appellant argued that under the Florida Supreme Court’s Administrative Order, all speedy trial time periods were tolled in response to the COVID-19 pandemic and any delay was permissible. The Appellee argued that the Administrative Order only applied to in-person proceedings regarding speedy trials but not for the time of an investigation or filing an information.

Under the Sixth Amendment of the Constitution, a defendant is guaranteed the right to a speedy trial by an impartial jury. A ‘speedy trial’ allows a defendant to be tried for alleged crimes within a reasonable time after being arrested. Even though most states have laws set in place that set forth the time in which a trial must take place after charges have been filed, the issue as to whether a trial is in fact ‘speedy’ comes down to the circumstances of the case itself and the reasons underlying any delay. In the most extreme situations, courts usually rule that the delay was unreasonable and prejudicial to the defendant, thus resulting in a dismissal of the case.

During the pendency of the subject appeal, this Court decided on another case that would directly impact the Court’s decision. In Smith v. State, the Court held that the Florida Supreme Court’s Administrative Order suspended all time periods regarding the speedy trial procedure, including the time for the State to file or amend an information. 310 So. 3d 1101 (Fla. 1st DCA 2020). This Court relied on their decision in Smith v. State to rule in the instant matter, deciding that the case would be reversed and remanded.

However, due to the difficult times that the entire world has had to endure due to the COVID-19 pandemic, administrative orders, like the ones discussed here, help prevent any such extreme situations from developing. Therefore, the First District Court of Appeal has clarified the Administrative Order, allowing for litigants to properly adapt to these unprecedented times.

The Technical Amendments To The Florida Appellate Rules Of Procedure Look Like They Are Here To Stay

The Technical Amendments To The Florida Appellate Rules Of Procedure Look Like They Are Here To Stay

Portrait of Ashley Exposito

Ashley Exposito

The December 2020 amendments to the Florida Rules of Appellate Procedure look like they are here to stay. Since the advent of the coronavirus, Florida rules and procedures have evolved to accommodate the new virtual world that many attorneys have found themselves immersed in even today. The Florida Supreme Court has implemented these new technical requirements in pursuit of mitigating technical issues so often run into by both lawyers and judges navigating the online field. The Florida Supreme Court’s addition of Rule 9.045 sets forth requirements involving the drafting of electronic appellate documents, including font size, style, and word limit. In addition, Rules 9.100 (1) and 9.210 (a)(1)-(3) were removed as they no longer served a purpose under the recently added Rule 9.045. The new rule has the legal world saying farewell to the beloved Times New Roman and hello to Bookman Old Style or Arial. The Florida Supreme Court’s reasoning behind these font requirements stemmed from some crafty practitioners using different fonts to work around the page limit requirements under the appellate rules. These two fonts were also implemented to make electronic filed briefs more reader friendly. Due to the increased size of these two fonts, the Florida Supreme Court has also gone from using a page limit requirement to a word limit requirement to keep in line with the former rules for computer-generated briefs. Though these may seem like small changes, the Florida Supreme Court continues to show its efforts to evolve with the continuously changing online landscape and the virtual world that is likely here to stay.

Meet our 2021-2022 Executive Board

Meet our 2021-2022 Executive Board

President: Aimee Garces

Executive Vice President: Glenn Garcia

Vice President of Internal Affairs: Claudia Gurdian

Vice President of Financial Affairs: Marian Quintero

Vice Presidents of Membership: Jennifer Blanco & Massiel Andino

Vice President of Alumni Affairs: Danay Hernandez