If you are a business owner or have worked under some organization for a specific field. Then you probably have assigned a non-compete clause contract. The main question that arises is that- Can I Fight Non-compete Clause In Florida Court? Just like any other contract, there are certain limitations and restriction you have to keep in consideration. These agreements are enforceable by law.

What is a non-compete clause?

 In contract law, a non-compete clause is an agreement under which one party agrees over they would not enter while working in the course of hiring for the same business or trade or for the competition against the second party. The extent of the non-compete clause is legally acceptable but varies in a jurisdiction. For example, if there is any breach in the contract, there will be no consideration of the non-compete clause.

• In the states of Florida, some law firms practice the agreement of non-compete clause for an employer’s confidential terms and conditions. But it is nearly impossible to stretch the contract for a long span. If the contract crosses two years of binding, then the contract becomes unenforceable under the state of Florida.
• However, Florida courts rarely refuse to enforce this Act, as its range and scope are narrow. The contract of non-compete clause includes some time period, qualifications and geographic location.
• The burden is on the employer about the restrictions and enforcement should be necessarily legitimate. If the contract is not legitimate and fair, then the employer is not answerable for the enforcement of the contract.

When is the Contract unenforceable?

When parties enter into a contract, then they mutually agree over the terms and conditions of a contract. The consent of both parties is one of the most important factors in a contract, agreement. Without the will of any other party would make the contract null. There are several cases when the contract becomes unenforceable. Under such circumstances, resulting in the employee is not reasonable for the agreement anymore.

• There is a case of Minor Breach of Contract, where the important aspects of the contract were received. But some small parts of the contract remain incomplete. It is also called an Immaterial Breach. In this case, it is hard to show the damages of a breach.

Example- In shipping of the refrigerator, the seller didn’t provide the user manual. So it is almost impossible to show harm caused as there is no loss of money caused.

• This is a very common breach of contract, when one party is unable to fulfil the obligations to another party, resulting in, breach of contract. After the breach, the contract is entitled to void.
• An actual breach kind of contract is the contract in which the wronged party is answerable for compensation to another party for their damages.

Example- Buyer ordered a pink maxi dress, but he gets a tank top instead of the maxi dress. Then the seller is responsible for the damages caused to the buyer.

• The employer’s failure to pay the compensation in the favor of the agreement is a very common breach of contract, in this case, the injunction or termination of the contract may occur.

Consideration Of Breach In The Florida State

When an employee faces any lawsuit of a non-compete clause, then he can defend himself by challenging the enforceability of the contract. There are many aspects working at the same time. If there is any breach in the contract, then the employee can defend himself as there are no restrictions if the contract is void. You cannot make a penalty if there is no contract. For common defence, the employee should just claim that there is a breach.

Can I Fight Non-compete Clause In Florida Court?

Whether talking about Florida, the agreement of non-compete is unreasonable and unenforceable. But the agreement still remains enforceable, but the court cut the duration or area in which it was applicable.

In Florida, the contract lasts only for two years. As this contract is specialized and very specific, so this is almost impossible to make it long last. The contract should be almost six months old to keep it under consideration and if the contract is an infant, then, court work on different aspects of legitimacy of business like the period of hiring, the duration of working before leaving, etc.

The main concern that arises is that- Can I Fight Non-compete Clause In Florida Court? If the Florida court is in the favor of an employee then the temporary injunction may take place, however, Florida mostly do not concentrates look on the injunctions.

Case Law

Can I Fight Non-compete Clause In Florida Court?

Consider AB is a company, who hired an employee to work in New York City. Both parties assigned the terms and conditions for the duration of work and hiring, also agreed to the contract of a non-compete in Florida. And they decided the contract will be considered as it is in New York too. The employee worked for the AB Company in New York and made good progress over there, built customer relationship nicely. After some years the termination period dawn, AB company terminated her job after a month of termination of the contract took place.

Now the employee got hired in another company which was the competitive body of AB Company, filed a lawsuit against the employee which was working for their competitors, in the urge of spoiling the secrecy of their company, in the courts of Florida, the contract of restrictive covenants were same in both Florida and New York City.

The court of Florida concluded that this agreement mainly focuses on the interests of an employee, refusing the prohibition against the employee. The ramifications under this contract may vary from each other in cases, as the aspects change the jurisdiction also change, the basis on the circumstances. Court studies all the ramifications and mostly don’t want to sanction any of the party’s livelihood.

Summary

The contract is based on some basic rules like conception, obligations, acceptance, capacity and legality, these elements that make the contract legally binding. If there is no balance in these elements, the contract makes no sense of existence. The elements may change as the subject matter changes. Intention involves a genuine legal relation. The contract should have a legal purpose and transparency, which will make it legally enforceable. In certain circumstances, the agreement becomes void and unlawful leading to injunction, but that is just to overrule the statute.

An executor (also known as an administrator) is the person in charge of the estate of a deceased person. (i.e., their assets, property, shares, bank accounts, and so on). Can an executor appoint a power of attorney?

Being appointed executor does not obligate you to accept the position. It might take years to get from agreeing to be someone’s executor to having to carry out those responsibilities. Conditions may change over time, and an executor may have less time due to family. Also, have work responsibilities may live abroad, be ill, or the estate may be complicated. And, with the potential of a family feud (if certain family members have been left out of a Will, etc.)

Renunciation 

Renunciation of an executor’s duties is a reasonably easy procedure. If an executor wishes to completely relinquish their right to act. Then, they may renounce (step down) from their duties. An executor must ensure that they have not “Intermeddled” in the estate before agreeing to renounce. This assumes they haven’t done something that an executor would do when handling an estate. Such as paying debts, selling personal belongings, and so on.

To renounce, the executor must sign a renunciation document. That releases the executor from the burden of handling the estate indefinitely. The renunciation form is then filed with the Probate Registry, along with the remaining executor’s application for Grant of Probate (s). Renunciation decisions are usually reversible except under rare situations after they have been registered with the Probate Registry.

Can an executor appoint a power of attorney?

The executor is not issuing a “right of appointment,” but rather delegating some of his or her responsibilities to someone else. It must be followed as power of attorney is a distinct legal form. However, the executor will usually assign duties. When our office assists an executor in probating a will. We usually hire an outside appraiser and/or real estate agent.

When we draft a will or trust, we have a provision that explicitly grants the executor or trustee the authority to delegate. So, the will is the first place to look for an answer to this question. If the will was written by a qualified solicitor, there will almost certainly be a provision granting the executor the authority to delegate any of his or her duties.

In fact, this is often a point of dispute between beneficiaries and executors. The beneficiaries may have one real estate agent in mind, while the executor may have another. When the beneficiaries want a fast sale to collect the proceeds, the real estate agent may want to hold the property on the market in order to gain the true value. Again, a knowledgeable probate lawyer has dealt with this issue before. And typically has resources that have proven to be useful in resolving the issue.

What happens if I am unable to act? Is it necessary for an executor to nominate another executor?

If an executor is unable to function but does not want to relinquish the right to administer completely, he or she has many options:- 

– If they are suddenly unable to act, for example, because they reside overseas. The executor may grant the power of attorney to another person on the behalf. The executor may delegate the duties he or she is responsible for to the solicitor.

-If one of the executors refuses to act when there are more than two executors named. The executor will have power reserved for them. This means that they are not actually serving as executors but retain the right to do so in the future if necessary.

-If someone really wants to be an executor but considers the administration of the estate too onerous or time-consuming. They may nominate a solicitor to manage the administration on their behalf. The executor retains possession of the estate, but the attorney is in charge of securing the Grant of Probate. Or gathering properties, settling debts, and distributing the estate, among other things.

An executor may appoint an agent to carry out certain responsibilities on his or her behalf. In contrast, to represent the executor in the court, the power of attorney cannot be used. While an agency will accept power of attorney to act on behalf of an executor under some cases. It is possible that such entities would require the individual who has been given letters testament to acting. And a power of attorney to act on such a person’s behalf will be rejected. Acceptance of a power of attorney is subject to the laws of the particular organisation.

Author’s Note – 

Basically, when it comes to Can an executor appoint a power of attorney, the answer is mostly Yes. The executor most of the time appoints another executor on behalf of him/her. Unless the will has mentioned something else, the executor can appoint a power of attorney. Some powers are in the hands of the executor and at times, they are not.

An LLC can become a corporation. You can convert the LLC to a corporation if the other members of the LLC agree. Some states have a fast and painless procedure for converting your LLC to a company. Some states’ procedures are more complicated, taking more time and documentation. 

Changing the company structure would have implications, both positive and negative. Examine the functional discrepancies between the two company groups, such as reporting standards, taxation, and corporate formalities, before making the switch. If you don’t like what you hear, you can adjust the company’s tax status instead of converting to a corporation and keep your business structured as an LLC.

Differences and Similarities Between LLCs and Corporations

Before converting your LLC to a corporation, make sure you understand the implications of the new structure. First, consider the parallels between the two. Both LLCs and corporations are separate legal entities from their owners. And they do not exist until the owners file the necessary paperwork.

These companies, unlike sole proprietorships and partnerships, can own assets and incur liabilities. Corporations and LLCs both provide limited liability protection. It means that the owners are typically not personally liable for the business’s debts and obligations.

Complexity in management

Corporations have a more rigid management structure than LLCs. The LLC owners (referred to as “members”) manage the business, or they may hire a third party to handle the day-to-day operations. Your state may require LLCs to file annual reports, but the reports’ content is limited to basic details such as the company address and registered agent.

Managing a company is more structured. The formalities include holding daily meetings, taking minutes, keeping notes, and submitting annual reports. According to state law, corporate annual reports must provide comprehensive details about the company and its finances.

Taxation

When it comes to taxation, LLCs have advantages that companies do not. By design, LLC owners register and pay taxes as sole proprietorships or partnerships. A company, on the other hand, must pay taxes as a C Corporation or an S Corporation. A-C Corporation faces “double taxes.” The corporation pays corporate tax on income that enters the company. After distributing the profits, the owners and shareholders pay taxes on the same income on their personal tax returns a second time.

Reasons to Convert from a Limited Liability Company to a Corporation

Now that you’re aware of some of the practical implications of converting, rethink if you still need to become a company. Changing a company’s structure to a corporation may be advantageous for certain businesses, but it is not for all. If you need funds, you’ll find that investors tend to deal with companies because it’s easier to sell stock in a company than it is to pass ownership in an LLC. Creating a business requires you to issue stock and “go public” with the company. It helps you to expand the company by selling shares to the general public.

If you do not wish to draw investors or go public, the challenges of transforming your LLC and sustaining a company are unlikely to be worth the effort. It is not necessary to alter the structure of your company in order to expand or increase revenues, and many large and profitable businesses continue to function as LLCs.

Understanding the Various Conversion Types

If you’ve agreed that converting your LLC to a company is a smart idea, here’s what you’re in for. The paperwork and procedure for converting your LLC will be determined by the laws of the state in which your company was created. In all states, the LLC members must support the transition. And develop a transfer plan outlining how member ownership will be converted into shares of stock. Following conversion, the members become shareholders of the company, and the owners transfer all of the LLC’s properties and responsibilities to the corporation. The three conversion options are as follows:

Statutory Conversion:

Some states permit “statutory” conversion, which applies to a statute that establishes a simplified procedure for modifying the business structure. In states where this option is available, you can convert an LLC to a company by filing conversion forms with the Secretary of State. The state dissolves the LLC and passes debts and responsibilities to the company until the Secretary accepts your filings. To form the company, you do not need to file any additional paperwork.

Statutory Merger:

If your state forbids conversions, you might be able to seek a merger, which is a more complicated procedure. To begin, you create a new company and add your LLC members as shareholders.

Non-statutory merger:

In this case, you do not use either of the state-mandated procedures. Instead, you create a new company, distribute corporate stock to LLC members, move LLC properties, and then dissolve the LLC. Since shifting assets and liabilities can be complicated, it is best to consult with an attorney before pursuing a non-statutory merger.

Steps to Form a Corporation That Are not really Needed

If you seek a conversion or a merger, you must first create a new company, which includes

1. establishing corporate bylaws.
2. conducting an introductory board meeting, and
3. issuing stock certificates
4. requesting a new Employer Identification Number (EIN).

When the corporate conversion is complete, you will be expected to conform to new corporate formalities, such as conducting daily meetings of directors and shareholders, maintaining corporate minutes, and filing annual reports with the state.

The Tax Implications of Converting from an LLC to a Corporation

In certain instances, the company would not owe taxes as a result of the conversion. However, if you move all or less than all of the assets of the LLC to the company, or if the members of the LLC are not owners of the new corporation, you might be subject to additional taxes and filings. To assess your reporting conditions, consult with an accountant or a tax attorney.

Changing the Tax Status of the LLC

Instead of converting your LLC to a corporation, you can elect S Corporation or C Corporation tax status by filing paperwork with the IRS. You will still run your company as an LLC under this option, but you will pay taxes as a corporation. Although you will not be able to issue stock or go public as a result of this. You will be able to reap the advantages of corporate taxes, such as avoiding self-employment tax on a portion of the company income. 

So, it can be concluded that the LLC can become a corporation. It has its own advantages and disadvantages that matter from company to company. The LLC can either change to S- corporation or to C corporation. There are three methods of conversion and some additional steps involved.