Monthly Archives: April 2014

Basic Considerations for Residential Roofing in Florida Part 1 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 materials and system for your home is one that balances these considerations. This is a three part blog that will discuss basic residential roofing considerations in Florida. Part I will discuss the basic components and types of roofs. Read Full Post

CATEGORY: 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:

Difficulty Calculating Delay Damages: Total Cost Method & Liquidated Damages

You have successfully proven that a delay occurred and effectively addressed the common and most applicable defenses. Now comes the part of the process for determining the amount of damages that resulted from the delay. Calculating the amount of damages is rarely a simple task. A common theme of this series so far is that there are numerous factors and methods used when dealing with delay damages. Calculating the amount of damages is no exception. This Blog post delves into two methods that are used when ascertaining the amount of damages is extremely difficult: a liquidated damages clause and the Total Cost Method. Read Full Post

CATEGORY: Florida Construction Industry Law Blog Practice Areas:

Terminating Condominiums According to the Florida Condominium Act: Part IV

This is Part IV in a series of Blog posts dedicated to explaining the process for the termination of condominiums according to the Florida Condominium Act. Previous posts in this series discussed the process of termination due to economic waste, the impossibility to continue as a condominium, and the purchase of condominium property by a developer. Part III explained the required provisions within a plan of termination. This post explains the steps that must be taken to properly execute the plan of termination and what must be done after the plan is executed and in effect. Read Full Post

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Lenders and Vendors Beware: Deprizio Can Spoil Your Insider Guarantees – But a Waiver May Protect You

Lenders and trade vendors often sagely require personal guarantees from the insiders of their debtor. In the event of debtor bankruptcy, a creditor may look to the insider-guarantor to satisfy the debt. The creditor’s ability to be made whole, then, is directly related to the financial position of the insider-guarantor. There is a problem: the Deprizio doctrine can erode the insider-guarantor’s financial position. Under the doctrine, the bankruptcy Trustee may disgorge assets from the guarantor that could otherwise satisfy the debt. Luckily, there is a solution to the Deprizio problem: a carefully crafted guaranty agreement that waives the guarantor’s claim against the bankruptcy debtor. This blog post explains the problem and clarifies the solution. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas: , , ,

Official Records of Condominium Associations Part 3 of 3

Section 718.111(12) of the Florida Condominium Act and Rules 61B-22.002, 61B-22.003(3), 61B-23.002(7) and 61B-23.0021(13) of the Florida Administrative Code provide guidelines for the maintenance and inspection of the association’s official records. Part 1 of this 3 part blog identified what records constitute official condominium association documents. Part 2 of this blog identified what records are specifically exempt from inspection by unit owners. This posting will identify specific official records retention requirements and logistical considers associated with unit owner inspections of official records. Read Full Post

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Obtaining Attorney’s Fees as Costs on Dismissed Actions

In litigation, under the right set of facts and law, the losing party is responsible for the attorney’s fees of the prevailing party. But, this determination is not always so simple. This post explores a recent decision where the litigants were entitled to fees under the contract, but fees were not plead in the answer and the case was voluntarily dismissed. Specifically, Lopez v. Bank of America, N.A., 2D12-1270, 2014 WL 1245609 (Fla. 2d DCA 2014) clarifies recovery of attorney’s fees when they are awardable but not plead by a defendant in a dismissed lawsuit. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas:

Terminating Condominiums According to the Florida Condominium Act: Part III

This is Part III in a series of Blog posts discussing the process for the termination of condominiums according to Section 718.117 of the Florida Condominium Act. Part I of this series focused on the process for termination due to economic waste or impossibility to continue. Part II discussed the optional termination process, which was added to the statutes in 2007. This Blog post provides an overview of the plan of termination and the required provisions to be included in the plan according to the Florida Statutes. Read Full Post

CATEGORY: Florida Condominium Law Blog Practice Areas: ,

How to determine whether a Florida LLC member breached his/her Fiduciary Duty in making distributions

There are many claims available to oppressed members of Florida Limited Liability Companies (“LLC’s”) whose business partners misappropriate assets through unlawful distributions. This Blog post focuses on determining whether actions in making improper distributions by majority members or managers of Florida LLC’s constitute breaches of common law fiduciary duties owed to minority interest holders. Read Full Post

CATEGORY: Florida Business Litigation Blog Practice Areas:

Are Non-Compete Provisions Enforceable if the Employer hasn’t Paid the Employee Due Compensation? It Depends on the terms on The Contract

When an employer seeks to enforce its non-competition agreement against its former employee, one of the most common defenses raised by the employee is that the employer failed to compensate the employee under the terms of the contract. The defense of non-payment is often enough to hamper the employer’s efforts to enforce its rights with a temporary injunction, which requires the employer to demonstrate its likelihood of success on the merits. So how can an employer get its temporary injunction now and fight the “non-payment” battle later? It all starts with contract drafting: if the non-compete provision is expressly independent of the remaining terms and conditions, non-payment of employee compensation is no defense to its enforcement. This Blog post analyzes a recent non-compete case is the latest Florida ruling to address the importance of drafting independent restrictive covenants. Read Full Post

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