Author Archives: James O. Birr, III, Esq.

Venue Selection Clauses in Construction Contracts: Contractors and Subcontractors Beware

By: James O. Birr, III

Most well written construction contracts, or any contract for that matter, have provisions governing venue for litigation of disputes arising out of or related to the contract. These types of provisions are commonly referred to as venue selection clauses. Depending on how the venue clause is worded, a court may require the parties to litigate their claims in a venue that does not jibe with what the parties intended. In the context of construction defect cases, and notwithstanding whether the venue clause is mandatory, parties may still be required to litigate in a forum other than the one they selected. Love’s Window & Door Installation, Inc. v. Acousti Engineering Company. Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas:

Debt Collection in Florida: Know the Rules

By: James O. Birr, III, Esq. and Sterling Spencer
When it comes to collecting a consumer debt, individuals, businesses and attorneys’ must be familiar with the Florida Consumer Collection Practices Act (“FCCPA”) and its federal counterpart, the Fair Debt Collection Practices Act (“FDCPA”). Like the FDCPA, the FCCPA protects consumers from abusive, harassing, and unfair debt collection practices. This post addresses Florida federal court case law as to damages for violations of the FDCPA and FCCPA, as well as recent changes to the FCCPA, effective October 1, 2014. Read Full Post

CATEGORY: Florida Business Litigation Blog

Florida’s Civil Theft Statute


James O. Birr, III

Florida’s Civil Theft statute is an attractive claim to many plaintiffs because, if successful, it allows recovery of treble damages and attorney fees. See 772.11 of the Florida Statutes. Civil theft claims can be asserted by individuals and businesses alike, and are meant to create civil liability for criminal practices that are violations of 812.012-812.037 or 825.103(1) of the Florida Statutes (i.e. crimes of theft, robbery, and exploitation of elderly persons). A party contemplating asserting a civil theft claim under Florida law must be aware of its nuances and pleading a proof requirements before asserting the claim. Read Full Post

CATEGORY: Florida Business Litigation 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

CATEGORY: Florida Construction Industry Law Blog Practice Areas:

Are You An Additional Insured or Simply Without Insurance Coverage

Insurance plays a key role with any business and its business relations with others. While parties may have good intentions as to their respective insurance obligations, they may fail to procure the requisite insurance coverage under the parties’ contract. When this happens, the results can be irreparable. Read Full Post

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

Disgorgement Of Funds By Unlicensed Parties

Florida law requires certain types of persons to be licensed in order to do business. Lawyers, realtors, and even construction contractors are among those professions regulated by specific licensing requirements. So, what happens when a party unknowingly contracts with a person who is required to be licensed but is not? The penalties for doing business without the proper licensing are harsh, and can even result in criminal charges and the return of all monies paid (known as disgorgement). This post explores certain remedies for engaging an unlicensed person or entity. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas:

Recovery of Attorneys’ Fees in Florida: Is It In Your Contract?

The recovery of attorneys’ fees is an important consideration prior to initiating litigation. Under Florida law, a party can only recover its attorneys’ fees if there is a statutory or contractual basis for doing so. Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla. 2009). This posting focuses on a “prevailing party’s” contractual right to recover attorneys’ fees and a suggestion to improve contract language to recover all attorneys’ fees should you find yourself in litigation. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas:

Construction Contracts: Six Key Provisions

When negotiating construction contracts for residential or commercial projects, there are several key provisions to include and that require careful consideration. While this list is not exhaustive, parties to construction contracts must consider the provisions for scope of work, order of precedence, notice of claims, indemnification, insurance and dispute resolution. Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas:

Avoiding Problems on Your Next Construction Project

If you are planning to hire a contractor in Florida to perform construction work, you must first do your homework. Many times, owners will hire a contractor without confirming the contractor is properly licensed and without knowing who is actually performing the work. Below are a few key issues to understand and consider before hiring anyone to perform construction work for you. Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas:

Terminating A Notice of Commencement in Florida: Owner and Lienor Beware

The Florida Construction Lien Law is an intricate machine full of requirements and traps for the unwary. The notice of termination of notice of commencement (Notice of Termination) is no exception. For the construction project’s owner, the Notice of Termination is a sworn document from the owner. For the lienor, the Notice of Termination is a sign that something is happening on the project and, therefore, the lienor must act quickly to preserve the priority of its lien for amounts owed. Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas: