Monthly Archives: February 2011

Holding the Construction Lender Liable

By: Harry M. Wilson, IV, Esq. and James D. Stone, III

In these tough economic times many construction liens are often erased by superior mortgages, such as when the lender forecloses on the property. In the past this would often lead to the lienor being left without a way to collect if the project owner was insolvent. Florida Statute §713.3471 and a recent ruling in Whitehead v. Tyndall Federal Credit Union has, however, provided another avenue for a lienor to recover costs. To read more click the title. . . Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas: , ,

Garnishment: Know Thy Debtor

By: Harry M. Wilson, IV, Esq. and James D. Stone, III
Everyone knows that economic times are hard right now. Collection lawsuits are on the rise and, as a result, courts are issuing more judgments. A judgment may be just a piece of paper but it transforms a “Plaintiff” into a “judgment creditor” with unique powers to try to collect the debt he or she is owed. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas:

Condominium Association Director Liability

By Harry M. Wilson, IV Esq.

Being a director of a condominium association can be a thankless job. First, as a director of the association, you are an unpaid volunteer and the Association itself is a not-for-profit corporation. Nonetheless, under Florida Statutes Section 718.111(1), the “officers and directors of the association have a fiduciary relationship to the unit owners.” Read Full Post

CATEGORY: Florida Condominium Law Blog Practice Areas:

Rescinding job offers in At-Will employments in Florida

By: Charles B. Jimerson, Esq. and Robert O’Linn

Today’s labor market can be generally characterized by high job turnover. Nationwide, in November 2010, over four million employment positions were filled and nearly an equal number of employment relationships were severed. Understanding the relationship between employers and their current and prospective employees is very important in a national labor market with a job turnover rate of approximately two percent of the labor force per month. The predominant and default employment arrangement in the United States is “Employment-at-Will. In Florida, an employment agreement that does not provide for a specified duration of employment, in the absence of surrounding facts that could be construed as a durational restriction, is recognized as an agreement to employment at will. See Savannah, F. & W. RY. CO. v. Willet, 31 So. 246, 314 (Fla. 1901). Employment-at-will allows for the termination of employment at any time by either the employer or employee. See e.g. Demarco v. Publix Super Markets, Inc., 360 So. 2d 134, 136 (“The established law is that where the term of employment is discretionary with either party or indefinite, then either party for any reason may terminate it at any time and no action may be maintained for breach of the employment contract.”)

In a labor market with high job turnover, employers and employees are constantly creating new employment relationships and severing previous employment relationships. When an employee makes a transition from an existing employer to a new employer, they usually give notice to their existing employer and effectively sever the employment relation with their existing employer. The at-will doctrine allows employees the flexibility to do this. The drawback to this flexibility comes when the employee relies on an offer for new employment and then the offer is rescinded by the prospective employer. This situation has received varied treatment across jurisdictions.

This post describes how this situation is treated in Florida courts. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas:

Been Caught Stealing: Expelling or “kicking out” members from Florida Limited Liability Companies when a member is diverting assets

By: Charles B. Jimerson, Esq.

Though Florida was one of the first states to enact legislation permitting the organization of a limited liability company (“LLC”), usage of LLCs as a corporate form is still a relatively new thing. With the Florida Limited Liability Company Act of 1999 and the passage of certain taxation legislation, LLCs are a very favorable business organization form for small and mid-sized businesses. Nearly every LLC maintains a separate written or oral operating agreement, which is generally defined as the agreement governing the LLCs business, and member’s financial and managerial rights and duties. LLCs operating without an operating agreement are governed by the state’s default rules contained in the relevant statute and developed through court decisions interpreting those laws. In Florida, the LLC statute is Fla. Stat. Chapter 608.

Often in a small, member-managed LLC, managerial and financial disputes arise among the members regarding business affairs of the company or distribution of company assets. Clients often come to our firm to analyze and litigate issues regarding one or more fellow members who have committed breaches of the operating agreement, common law or statutory duties or in some cases have gone as far as violating criminal laws. In analyzing the aggrieved member’s rights against these rogue members practitioners must first turn to the LLC operating agreement before utilizing Fla. Stat. §608 and case law to fill in the gaps. As a case study for expulsion, we will analyze a scenario where a member is diverting company assets.
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CATEGORY: Florida Business Litigation Blog Practice Areas: ,