Monthly Archives: February 2017
Under Florida law, individual design professionals can be held liable for professional negligence, even if they did not personally contract for the professional services. Moransais v. Heathman. Moreover, Florida’s statutes governing engineering, architecture and geology make clear that individual design professionals are not automatically absolved of liability simply because they are not parties to a contract. Read Full Post
Involuntary bankruptcy is a legal proceeding creditors may use to force a debtor into bankruptcy, rather than a debtor voluntarily seeking bankruptcy protection on its own behalf. Creditors seeking involuntary bankruptcy must file a petition in the bankruptcy court, and the debtor has the opportunity to defend against being forced into bankruptcy. This blog is Part 1 in a two-part series, and will set forth the basics of an involuntary bankruptcy. Part 2 provides tips and strategies for defending against an involuntary bankruptcy petition. Read Full Post
There are many options for a contractor to deliver a project to a commercial owner. As with each different project, the delivery method can change to suit the needs of the parties. Careful attention should be taken when analyzing which method works for the particular project. Each of these various project delivery methods carry differing risks for the parties involved (i.e. owner, contractor, subcontractors, etc.). This two-part blog discusses some of most common project delivery methods for commercial construction projects. Part I discussed Design Build methods and Construction Manager at Risk. This part II will address some trending project delivery methods. Read Full Post
An Overview of Florida’s Deceptive and Unfair Trade Practices Act, Part I: What Is FDUPTA, Who Does It Protect, Why Is It Needed, and What Is Actionable?
Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) was passed by the Florida Legislature in 1973, and was designed as a state law complement to the Federal Trade Commission Act. 15 U.S.C. § 45. FDUTPA, sometimes referred to as the “Little FTC Act,” provides private remedies based on consumer protection law, which encompasses unfair, deceptive, and unconscionable acts or practices. This article, part one of a three-part series, first addresses the purpose of FDUTPA and who the act seeks to protect, why the act is needed, and what is actionable under the act. Read Full Post
Part one of this blog discussed turnover in its initial stages: the events that trigger turnover and the files and papers the developer is required to produce to the homeowners’ association at the time of turnover. Once an association has completed those steps, the board must then turn to critical business and make crucial decisions for the association. Associations and their boards should bear in mind the following issues as they go through turnover and immediately thereafter. Read Full Post
Performance bonds on a construction project can be a valuable asset. However, the language of the bond may be filled with traps for the unwary. A bond obligee must be careful to strictly comply with the bond language, or else the bond protection may be lost—which can be a very bad thing. A recent case, Arch Ins. Co. v. John Moriarty & Associates of Florida, Inc., 15-22403-CIV, 2016 WL 7324144 (S.D. Fla. Dec. 12, 2016), highlights how a bond obligee can lose its bond protection by failing to strictly comply with the bond language… and it cost the bond obligee One Million Dollars. Failure to understand and strictly comply with the bond language can be costly. Read Full Post
Choose Your Own Adventure: Are Florida State Law Claims for the Wrongful Filing of Involuntary Bankruptcy Preempted by 11 U.S.C. Statute 303(i)?
The filing of an involuntary bankruptcy is a serious matter, and creditors rarely resort to this drastic measure when attempting to collect on a debt. The prospect of creditor liability for costs, attorney’s fees, damages, and possibly punitive damages makes involuntary petitions a risky endeavor. Involuntary bankruptcy is most often used when unsecured creditors suspect fraud on the part of a company. Otherwise, creditors typically pursue collection on their own claims directly, including through federal and state litigation. The end result of these collection attempts might actually end up “forcing” the company into bankruptcy, but it would be a voluntary bankruptcy and a creditor would not be subject to the same risks associated with an involuntary petition.
If an involuntary petition fails, the consequences are quite serious. First, once filed, an involuntary petition cannot be dismissed without a notice and an opportunity to be heard, even if the petitioning creditors and the debtor company agree. Further, if the involuntary petition is dismissed, the petitioning creditors can be liable for costs and attorney’s fees of the company. However, the most serious consequence results upon a court finding that the petition was filed in bad faith. In this case, the petitioning creditors can be liable as well for damages caused by the involuntary filing and even for punitive damages. These claims are almost always asserted exclusively in bankruptcy court, but this post examines whether it is appropriate for debtors who are the victim of a bad faith filing to pursue state law claims for damages, including malicious prosecution, abuse of process, and slander in Florida state court. Read on to explore whether these state claims are preempted by the remedy provided in 11 U.S.C. § 303(i) in Florida. Read Full Post
During the construction and initial sales of units within a condominium association, the developer will manage the association’s operations and governance. This means the developer controls the association’s board of directors. Once the development is constructed and a certain percentage of units are sold, then turnover of control of the association to the unit owners must occur. What follows is Part II of what every condominium owner should know about developer turnover of the association. Read Full Post