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Author: Jimerson Birr

Using Florida’s Agricultural Bond Laws as a Collection Tool

October 25, 2010 Banking & Financial Services Industry Legal Blog, Insurance Industry Legal Blog, Manufacturing & Distribution Industry Legal Blog

As our firm represents many materials suppliers and site work contractors/subcontractors, we are often presented with payment issues that require us to pursue unconventional avenues of recovery to obtain payment. One area in which we have had a good success is through making claims on Agricultural Bonds through the Florida Department of Agriculture. According to Florida law, any person who is engaged within the state in the business of buying, receiving, soliciting, handling, or negotiating agricultural products from or for Florida producers, or their agents, must be licensed and bonded. The Bureau of Agricultural Dealer’s Licenses is responsible for the licensing of dealers in agricultural products. Per the Department of Agriculture, “Florida License and Bond Law is intended to facilitate the marketing of Florida agricultural products by encouraging a better understanding between buyers and sellers and by providing a marketplace that is relatively free of unfair trading practices and defaults. The purpose of the law is to help assure that the producers of products covered by the law receive proper accounting and payment for their products.” If you do business with nurseries, landscaping companies, or virtually anyone who deals in green goods and you like to get paid the money you are rightfully owed, this post should be required reading.

Independent Contractor vs. Employee – What is Your Status?

October 11, 2010 Professional Services Industry Legal Blog

By: Emily C. Williams, Esq.

Employers and employees, alike, are often unaware of the repercussions associated with how they are characterized in the workplace. When two persons agree that one will perform work for the other, the parties should be concerned with the legal significance of whether or not the arrangement creates an employer/employee relationship or an independent contractor relationship. Whether one arrangement exists can result in the following consequences: tax obligations — withholding, social security, and sales, prevailing wage rate obligations, indemnity and liability obligations for wrongful activities, insurance obligations and coverage issues and licensing. Furthermore, an employer is not held liable for the negligent acts of its independent contractors, except where the contractor injures someone to whom the employer owes a non-delegable duty of care, such as where the employer is a school authority and the injured party a pupil. An employer can also be held liable for the negligent selection of an independent contractor.

Overview of Documentary Stamp Tax in Florida

September 26, 2010 Banking & Financial Services Industry Legal Blog, Professional Services Industry Legal Blog

By Harry M. Wilson, IV, Esq.

Documentary stamp tax is levied on documents as provided under Chapter 201, Florida Statutes. Documents subject to the tax include deeds, bonds, notes and written obligations to pay money and mortgages, liens, and other evidences of indebtedness. The rate of the tax differs depending on the kind of document subject to the tax.

Pleading Unjust Enrichment in Construction Litigation

September 15, 2010 Construction Industry Legal Blog

By: Emily C. Williams, Esq.

The theory of recovery known unjust enrichment is often used by attorneys in construction litigation actions as an alternative count to claims for breach of contract or for foreclosure of a construction lien. It is not uncommon, however, for unjust enrichment claims to be improperly pled in the complaint, which will often lead to a misguided legal analysis. This, of course, can negatively affect your client’s case at the earliest stage of the dispute.

Unjust enrichment is often referred to as a contract implied in law; however, it is not a contract at all. The theory of unjust enrichment is a legal fiction defined as “an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended.” Tipper v. Great Lakes Chemical Company, 281 So.2d 10, 13 (Fla. 1973). Unlike quantum meruit, unjust enrichment does not require an assent between the parties. Quantum meruit is premised on the expectation of the parties, while unjust enrichment is supported by the interest of society in the prevention of injustice.

One must prove the following elements to recover under the theory of unjust enrichment: 1) lack of an adequate remedy at law; 2) a benefit conferred upon the defendant by the plaintiff coupled with the defendant’s appreciation of the benefit; and 3) acceptance and retention of the benefit under circumstances that make it inequitable for him or her to do so without paying the value of it. Challenge Air Transport, Inc. v. Tranportes Aeros Nacionales, 520 So.2d 323 (Fla. 3d DCA 1988). As this post will reveal, each of these elements present peculiar issues and analytical challenges for the legal practitioner.

Understanding the Process for Employee Sexual Harassment Claims

September 6, 2010 Professional Services Industry Legal Blog

Frequently our clients ask us general questions regarding the day-to-day operations of their business. In order to prepare a client for how to form corporate policies reacting to sexual harassment claims, we first had to educate them on the process of how an aggrieved employee goes about pursuing a claim. What follows is an overview of the claim filing process. Knowing the process of how employee complaints are made will help your business in formulating a defense if that time should ever come.

The Penalties for Passing a Bad Check in Florida

August 30, 2010 Banking & Financial Services Industry Legal Blog, Professional Services Industry Legal Blog

As the economy continues to tank and dead beat debtors begin to pass more and more bad checks, I have found it to be a prudent time to revisit the laws pertaining to writing bad checks in Florida. In general, the term ‘check’ means a draft, other than a documentary draft, payable on demand and drawn on a bank or a cashier’s check or teller’s check. An instrument may be a check even though it is described by another term, such as ‘money order.’ Fla. Stat. § 673.1041(6). A ‘draft,’ in reference to a check, is a three-party instrument by which the drawer order the drawee to pay money to the payee, and the drawee is a bank.

Fla. Stat. §68.065 (for civil actions to collect worthless checks, drafts, or orders of payment) allows for recovery of treble damages, service charges, attorneys’ fees, and costs if its provisions are not followed. Before litigation is initiated, the form of notice set forth in Fla. Stat. §68.065 must be delivered by certified or registered mail, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the check, draft, or order of payment. If notice is properly provided, the maker or drawer will be liable to the payee for, in addition to the amount owing on the check, damages of triple the amount owing, a statutory service charge based on the check amount, reasonable attorneys’ fees, and court costs. If the notice is sent via certified mail and the recipient refuses to claim the notice or sign the postal receipt, the statutory notice requirement is satisfied.

Considerations in Foreclosing SBA 504 Mortgages

August 30, 2010 Banking & Financial Services Industry Legal Blog

Overview of typical SBA 504 transactions

Banks and other lending institutions offer a number of US Small Business Administration (“SBA”) guaranteed loan programs to assist the development of small businesses. While the SBA itself does not make loans, it does guarantee loans made to small businesses by private and other institutions. Specifically, the US SBA 504 loan or Certified Development Company (“CDC”) program is designed to provide financing for the purchase of fixed assets, which usually means real estate, buildings and machinery, at below market rates. The 504 Program cannot be used for working capital or inventory, consolidating or repaying debt, or refinancing. The SBA 504 program works by distributing the loan among three parties. Typically, a 504 project includes…

Business Judgment Rule – Shielding the Corporate Director From Personal Liability and Considerations of Efficient and Financially Reasonable Resolutions

August 15, 2010 Professional Services Industry Legal Blog

When making business decisions on behalf of a corporation, it is presumed that corporate directors act in compliance with the above-referenced statute, by acting on an informed basis, in good faith and with ordinary care. This presumption is judicially created and is known as the business judgment rule. The business judgment rule is based on the premise that directors, for the most part, are more capable of making business decisions than are judges. Thus, where the rule is applicable, corporate directors will not be held liable for decisions made when conducting the business and affairs of a corporation.

Florida case law provides four elements which must be present for the business judgment rule to act as a shield to director liability: (a) the decision under review must be a business decision; (b) the director must not receive a personal benefit from the transaction ; (c) the director must exercise due care; and (d) the director must exercise good faith. F.D.I.C. v. Stahl, 854 F. Supp. 1565, 1570-1571 (S.D. Fla. 1994).

Therefore, the business judgment rule only protects directors only when they are carrying out their duties as directors, (e.g., making decisions and analyzing issues as directors). The business judgment rule is also inapplicable when the director furthers his self-interest. “A director is considered interested where he or she will receive a personal financial benefit from a transaction that is not equally shared by the stockholders, or will suffer a detrimental impact from the proposed transaction.” McCabe v. Foley, 424 F. Supp. 1315 (M.D. Fla. 2006).

Recent Changes in Florida Condominium Law Effective July 1, 2010

August 2, 2010 Community Association Industry Legal Blog

by Harry M. Wilson, IV

The following is a brief summary of some of the legislation included in Senate Bill 1196 which was signed into law on June 1, 2010 by Governor Charlie Crist. S.B. 1196 amends portions of Chapter 718 (the Condominium Act) and the new provisions portend changes for condominium unit owners and associations alike. The changes were made effective July 1, 2010 and include the following:

Identifying and Negating Successful Defenses to Valid Personal Guarantees

July 27, 2010 Banking & Financial Services Industry Legal Blog, Professional Services Industry Legal Blog

A contract of guaranty is the promise to answer for the payment of some debt or the performance of some obligation by another, such that if the original debtor is unable to pay the debt or satisfy the contractual obligation, for whatever reason, the guarantor is himself liable on the default of the primary obligor. The guarantor’s knowledge of the execution or delivery of a guaranty is irrelevant, where the contract of guaranty speaks for itself and where the guarantor has not disclaimed knowledge of the guaranty. See Chris Craft Industries, Inc. v. Van Valkenberg, 267 So.2d 642 (Fla. 1972).

In a typical case, a President, CEO, or other officer signs a personal guaranty for the debts of his corporation and becomes personally liable for the debt upon the corporation’s default. Florida case law demonstrates that a simple, but well-drafted personal guaranty, which specifically enumerates the personal nature of the debt assurance, is adequate to form a legal and binding personal guaranty.

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