Monthly Archives: June 2014

Measuring Delay Damages: Inefficiency or Loss of Productivity and Measured Mile

As is evident from the previous posts of this series, delay damages are complex. This is Part VIII of the series dedicated specifically to explaining these damages. Previous posts in the series have discussed proving that a delay occurred, addressed the most applicable and common defenses and varying methods to calculate delay damages—the Total Cost Method, the Modified Total Cost Method, the Jury Verdict Method, the Eichleay Formula and damages for an increase in labor, material and equipment costs. This post will discuss two methods that award damages for either a total or partial loss of labor productivity. Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas:

Pay When Paid Provisions: Are You Actually Shifting the Risk

Construction contracts contain many risk-shifting mechanisms. One such mechanism is the “pay when paid” provision that requires payment from one party before there is any requirement to pay another party. Typically, this contract provision is found in the contract between the general contractor and its subcontractors, as well as in the subcontractor’s contract with its subcontractors. If not properly worded, this risk shifting provision will not have its intended consequences. Read Full Post

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Legal Actions the Seller of Real Property Can Bring When A Buyer Breaches A Real Estate Sales Contract

It is not a situation that sellers of real property want to find themselves in, but it is a situation that could easily happen to anyone. After months of hard work getting a property in pristine condition to lure prospective purchasers, and then finally procuring a buyer, the entire transaction suddenly unravels. Despite signing the real estate sales contract, the buyer decides to walk away or, worse yet, fails to show at closing. What is the seller to do? This Blog post will discuss that very scenario and describe the legal actions that sellers of real estate can bring against a buyer when the buyer breaches the real estate sales contract. Read Full Post

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Judicial Dissolution of LLC’s in Florida- What does it take to kick out your partner?

Statutory guidance for judicial dissolution under Florida’s Revised Limited Liability Company Act is found within Florida Statutes, § 605.0702. Notably the section was revised in June of 2013 and became effective as of January 1, 2014. The revised LLC act, commonly referred to as the “New LLC Act,” significantly modified the judicial dissolution procedure. The New Act clarifies the grounds for judicial dissolution and the appointment of receivers and custodians in the dissolution process. The New LLC Act eliminated a creditor’s right to petition the court for dissolution, added three more bases for dissolution upon petition by a manager or member, and now permits a “deadlock sale provision.” Fortunately, 2014 will be a “transition year” where existing LLC’s may elect to have the new rules apply to them, while all LLCs formed in 2014 will follow the provisions of the New LLC Act. Existing LLC’s are not bound by the New Act until January 1, 2015. Whether you are a member or manager of a newly formed LLC or an existing LLC, the New LLC Act will likely effect your dissolution process. The following Blog post will explain what you will need to know about the judicial dissolution process under the New LLC Act as well as practicable issues in winding down a dissolved LLC. Read Full Post

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The Enforceability of Liquidated Damages Clauses in Real Estate Sales Contracts

Real estate sales transactions, and the underlying contracts precipitating those transactions, are constantly the source of litigation. Usually, the real estate sales contract will attempt to either limit the remedies available to the parties involved or specifically provide a predetermined amount for any monetary damages awarded through litigation. When a contract contains a provision for a predetermined monetary award for damages, that provision is called a “liquidated damages clause.” This Blog post will discuss the enforceability of liquidated damages clauses as they pertain to real estate sales contracts. Read Full Post

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Measuring Delay Damages: Jury Verdict Method

This is Part VII in a series of Blog posts dedicated to explaining delay damages. Previous posts in the series have discussed proving that a delay occurred, addressed the most applicable and common defenses and varying methods to calculate delay damages—the Total Cost Method, the Modified Total Cost Method, the Eichleay Formula and damages for an increase in labor, material and equipment costs. Another method used to calculate delay damages is the Jury Verdict Method, which is a combination of a few methods previously discussed. Read Full Post

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Basic Considerations for Residential Roofing in Florida Part 3 of 3

Roofing systems are an integral part of any new construction. There are a number of things to consider when selecting a new roof system. Of course, cost and durability head the list, but aesthetics and architectural style are important, too. The right roof system for your home or building is one that balances these considerations. This is a three part blog that will discuss basic residential roofing considerations in Florida. Part I discussed the basic components and types of roofs. Part II discussed the “Enemies” of your roofing system. This Part III will discuss various factors and considerations in selecting a roofing contractor. Read Full Post

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Real Estate Contracts, the Statute of Frauds, and Exceptions to the Statute of Frauds

The “statutes of frauds” is a doctrine of law that requires certain contracts to be in writing and signed by the person to be charged in order to be enforced. One such contract that falls under the statute of frauds is a contract for the sale of real property. Fla. Stat. § 725.01. Case law has placed additional requirements on contracts for the sale of real property, requiring them to be specific as to the parties involved, the subject matter, the parties’ obligations and the consideration. Minsky’s Follies of Fla., Inc. v. Sennes, 206 F.2d 1, 3 (5th Cir. 1953). If the underlying real estate sales contract is not certain and clear as to all of those items then it is unenforceable. The reasoning for this was articulated by the Federal Fifth Circuit Court of Appeals: “In order that there be a contract [for the sale of real property], the parties must have a definite and distinct understanding, common to both, and without doubt of difference.” Id. Read Full Post

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What banks need to know in responding to subpoenas for financial records

As counsel for lenders, I’ve been consulted with and required to opine on a wide range of topics throughout my tenure. Specific to financial institutions, lawyers working in our banking law practice group must have knowledge of not only the legal process for special assets workouts, the regulations governing commercial and consumer transactions, but also the regulatory guidelines governing turnover of bank data in the discovery process. For instance, what does a bank do when faced with a subpoena that requests private and confidential customer information? This post seeks to ease the learning curve for banks who don’t know how to respond when faced with subpoenas for records and take a close look at 1) who and what the privacy rights the laws are designed to protect, 2) what the governing laws say, and 3) how these laws are implemented when a subpoena is received. Read Full Post

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Legislative Update: Florida’s 2014 Legislative Session’s Impact on the Construction Industry

The 2014 Florida Legislative session came to an end on May 2, 2014. With a $1.2 billion surplus and elections looming in the fall, cuts in state taxes and fees were a priority for Governor Scott and for legislative leaders. Early in the session, the Legislature passed a $395 million roll-back in vehicle and vessel registration fees which may help the construction industry – fees that were increased in 2009 under the watch of former Governor Charlie Crist. Read Full Post

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