Lien

Can they put a lien on my property?

In many instances, contractors or subcontractors perform work on someone’s property, without the property owner being fully aware of their rights or responsibilities under the lien statutes in Florida. When there is non-payment by the property owner or a dispute over payment, litigation often arises. And, interestingly, litigants, and sometimes courts, aren’t sure of their respective duties.

A case in point is Marble Unlimited, Inc. v. Weston Real Estate Inv. Corp., 125 So.3d 286 (Fla. 4th DCA 2013). Marble Unlimited, Inc. was a granite countertop subcontractor. Beginning in 2003, Marble contracted with Weston Real Estate Investment Corporation (“Weston Investment”) to renovate buildings within a condominium complex. From 2003 to 2007, Marble completed the renovations on buildings 3 through 8 and received payment from Weston Investment. Id at 287. In August 2006, Marble entered into two separate contracts for work on building 9 of the complex. As with the prior contracts, the owner identified in both contracts was Weston Investment. Id. Marble performed under the contracts and in 2008 filed claims of lien against various units, referencing its contracts with Weston Investment. Notices of contest of lien were filed by one John Genoni on behalf of the two corporations identified as owners—Weston Investment and Weston Real Estate Development, LLC (“Weston Development”). Id.

At a jury trial, and the jury awarded Marble $112,237.29 in damages against Weston Investment on the contract claims. The lien claims were decided non-jury. The circuit judge dismissed the lien claims against Weston Development because Marble had not served a notice to owner on Weston Development pursuant to §713.06, Florida Statutes. Marble then appealed.
Lien
The appellate Court noted that lienor who is in privity with the owner is not required to serve a notice to owner, as required by section 713.06. Id at 288. Whether privity exists is a factual inquiry requiring “both knowledge by an owner that a particular subcontractor is supplying services or materials to the job site and an express or implied assumption by the owner of the contractual obligation to pay for those services or materials.” C.L. Whiteside & Assocs. Constr. Co., Inc. v. Landings Joint Venture, 626 So.2d 1051, 1052–53 (Fla. 4th DCA 1993) (citing Harper Lumber & Mfg. Co. v. Teate, 98 Fla. 1055, 125 So. 21 (1929)). Here, at the time work commenced, Marble was in privity with Weston Investment, having signed two contracts where Weston Investment had identified itself as an owner, similar to the way Marble had completed renovations on the previous six buildings. Marble was therefore not required to file a section 713.06(2)(a) notice to owner after it commenced work on building 9. Id.

Interestingly, the appellate Court wasn’t willing to fall for the “switch-a-roo” seemingly attempted by Weston. The appellate Court held: after it contracted with Marble as the owner, Weston Investment could not trigger a duty on the part of Marble to file a notice to owner by transferring ownership of the condominium units to a related corporation, Weston Development. That the corporations were related is evident in the record—John Genoni filed notices of contest on behalf of both corporations and John Genoni, Jr. signed the original contracts on behalf of Weston Investment. To affirm the judgment of dismissal under these circumstances would be to allow corporate owners to play a shell game with ownership and frustrate the valid claims of contractors who complete work on real property. Id.

Photos in this blog are courtesy of: rfiblog.com & californiabusinesslitigationattorneyblog.com

Communicating with your Attorney

Communicating with your Attorney

Top 5 tips on communicating with your attorney:

When speaking with your attorney or your attorney’s paralegal it is important that you divulge everything without crossing the line into a therapy session, you are paying by the hour. Speaking personally, I enjoy getting to know those that I am helping. However, I am helping you by telling you to use your time and mine wisely

1. Slow Down: It may sound counter-productive but you know your situation inside and out. You are living it, we are not. Although attorneys and paralegals are well versed in taking short hand notes, at times this is not enough when there is a frantic person on the other end of the phone going through the details of their recent, {insert emergency situation here}. Slowing down will give you a chance to sort through the event and be specific. We need all of the little details even if you think it is irrelevant, we may see it completely different.

2. Take your own notes: You as the client should always take notes when speaking with your attorney’s office. Whether you call to ask advice or we have called you to ask a question or request documents, it is a helpful tool to refer back to without having to repeat the phone call or conference you just had.

If a situation is not an emergency and you simply have information or a quick question, jot it down for your next phone call or email. Once you have compiled a few, go ahead and contact us. This will save some time and energy (and, ultimately, fees you will have to pay).

3. Be honest, always: Especially if you Communicate Attorney think it may harm your case. If you are concerned about it, most likely the other side is thinking about it too. The best way for us to deal with bad facts is to know about them. We don’t like surprises.

4. Just do it: When your attorney’s paralegal contacts you and states that you need to fill something out or gather a ridiculously large amount of documents, it is best not to avoid it. Always ask questions, but don’t delay the inevitable. You will eliminate the calls and emails from us and keep a little more in your trust account for those important hearings.

5. Your time is important too: If you want to sit down and talk with us, call the office first to set an appointment. We would hate for you to sit and wait long while we finish up what we are working on. If you show up unannounced, while we try our best, there is no guarantee you will get to see someone.

Photos in this blog are courtesy of: bufetejuridico.org/, flickr.com

Social Media

Social media in your case

In today’s society, social media is a staple for communication. Like it or not, people can learn a lot about someone else by what they post on social media sites. The law is quickly recognizing the impact of social media on cases before the court.

But, what someone posts on social media sites may or may not be admissible in court. In order for evidence to be admissible, under Fla. R. Civ. P. 1.280(b)(1), the party seeking discovery must establish that it is (1) relevant to the case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court. In Root v. Balfour Beatty Const. LLC, 132 So.3d 867 (Fla. 4th DCA 2014), the Court noted that trial courts around the country have repeatedly determined that social media evidence is discoverable. See Christopher B. Hopkins & Tracy T. Segal, Discovery of Facebook Content in Fla. Cases, 31 No. 2 Trial Advoc. Q. 14, 14 (Spring 2012). However, in Root, a parent filed a lawsuit against a city, contractors, and construction companies after her son, Gage, was injured at a construction site. In response, the Defendants sought the following information from Root:

1. Any and all postings, statuses, photos, “likes” or videos related to Tonia Root’s
a. Relationships with Gage or her other children, both prior to, and following, the accident;
b. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
c. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;
d. Facebook account postings relating to any lawsuit filed after the accident by Tonia Root or others[.]

The Court noted that the discovery relates to Root’s past and present personal relationships with all her children, other family members, and significant others; Root’s past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by Root or others after the accident. Id. at 870.Social Media
The Court held that, the scope of the discovery compelled in the foregoing requests, regarding Root’s relationships with her entire family and significant others, her mental health history, her substance use history, and her litigation history appears to be the type of carte blanche discovery the supreme court sought to guard against in Langston. See Russell v. Stardust Cruisers, Inc., 690 So.2d 743, 745 (Fla. 5th DCA 1997) (observing that while an individual’s health, life expectancy, and habits are at issue and broad discovery is allowed, a court must still determine which records would be relevant and the court should take protective measures, such as an in camera inspection, to prevent disclosure of irrelevant matters. Id. The Court did state that if developments in the litigation suggest that the requested information may be discoverable, the trial court may have to review the material in camera and fashion appropriate limits and protections regarding the discovery. Id. at 871.

Photos in this blog are courtesy of: bwglaw.net, jetlaw.org

Attorney Fees

How can I get the other side to pay my attorney fees?

In family law cases, attorney fees are often based on the “need and ability to pay” standard. This can get quite complicated, as I am sure we all need (or at least want) someone else to pay our attorney’s fees. The problem is whether or not the other side as the ability to pay them.

In civil cases, it can be possible to get attorney fees from the other side if a contract provides for fees, or if a statute is on-point. There is an additional way: a Proposal for Settlement. This is governed by Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442.

Attorney FeesWhile the language of both can get complex, it is interesting what can happen if a party chooses to use a proposal for settlement. Recently, in RJ Reynolds and Liggett Group v. Ward, the Plaintiff sought damages from the Defendants. During the time the case was pending, the Plaintiff sent a proposal for settlement, which indicated an amount to settle the case. The Defendant did not accept the proposal. Without going into the nuances of what is required under a proposal for settlement in order to trigger an award of attorney fees, in this case, the Plaintiff received an award from the jury that was well above the proposal. The trial court determined that the Plaintiff was entitled to attorney fees. RJ Reynolds appealed.

The 1st District Court of Appeals held that the Plaintiff did not properly comply with the statute and the Rule of Civil Procedure, and strict compliance is necessary, so the award of $1,452,337.62 in attorney’s fees was reversed. The court even noted that it was clear that punitive damages (the item that wasn’t specifically included in the proposal for settlement) would have been extinguished if the tobacco companies had accepted the offer, but the supreme court made the test strict compliance, not the absence of ambiguity.

Photos in this blog are courtesy of: blog.jamessansonelaw.com, socialsecurityinsider.com

Valid Contract

But, I thought we had a contract!

Many times, people think they have an agreement with someone, only to find out that they don’t. Of course, if there is no actual “contract”, there may be other remedies available, but the fact that someone doesn’t have a valid, enforceable, contract can cause concern.

In Office Pavilion South Florida, Inc. v. ASAL Products, Inc., 849 So.2d 367 (Fla. 4th DCA 2003), the parties had a contract for keyboards, which obligated one party to purchase a minimum of 1,000 keyboards a year. There was also a provision for the purchase of chairs, however, there was no minimum quantity term for the chairs. The Court noted that it is a fundamental principle of contract law that a promise must be supported by consideration to be enforceable.Valid Contract And, in a contract where the parties exchange promises of performance, “[i]f either of those promises is illusory or unenforceable then there is no consideration for the other promise.” Id at 370. The Court held that Pavilion agreed to sell to ASAL any chairs it chose to order at the price set forth in the price list. While ASAL may have agreed, its acceptance involved no promised performance and therefore did not constitute consideration to support the contract modification for the Aeron Chairs. Id. The Court also noted that, under Florida Statutes §672. 201(1), without a quantity for the amount of chairs purchased, the contract would be unenforceable.

Without all of the requirements of a contract, and a meeting of the minds as to the terms of the contract, the Court here found that a contract did not exist.

Security Deposit

How do I get my security deposit back from my landlord?

Many tenants (and landlords, for that matter) have some difficulty in interpreting Florida Statutes when it comes to the return of a tenant’s security deposit. Florida Statute §83.49(3)(a) provides guidance:

“Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form:
This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to. It is sent to you as required by §83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address).
Lease Agreement
If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit and may not seek a setoff against the deposit but may file an action for damages after return of the deposit.”

This statute applies to residential tenancies. There are separate statutes for commercial tenancies.

The residential portion of Florida Statues chapter 83 also addresses different kinds of rent payments, including advance rent payments. This could have a bearing on the return of rent payments, if a tenant vacates before the end of the term paid for. In Florida, if a lessee pays rent in advance and the lease is properly terminated by the lessor, then the lessor is not required to return the advance rental payment. See Atlantis Estate Acquisitions, Inc. v. DePierro, 125 So.3d 889 (Fla. 4th DCA 2013).

The wording of Florida Statute §83.49(3)(a) seems counter-intuitive. If the landlord does not plan to keep any of your security deposit, they have 15 days to return your money. But, if they do plan on keeping your funds, they have 30 days to notify you of their intent to keep your funds. Importantly, if a landlord fails to send a notice as required by this statute (i.e. within the 30 days), the landlord forfeits the right to keep the deposit. However, that same landlord can bring a lawsuit against the tenant for damages.

As always, it is important to contact a lawyer regarding your rights and responsibilities as a landlord or tenant.

Contracts

Have an attorney review your contract before you sign

I oftentimes talk with existing clients about how important it is to be proactive in making business decisions. You would be surprised how many people come to my office AFTER having signed a contract (many worth hundreds of thousands of dollars) and say: “I just signed this contract. I have concerns about X, Y, or Z. Will you look at it for me?” My first response is: “If you had concerns, why didn’t you come to me or someone else BEFORE you signed the contract.” It is very important when you are entering into a contract to have an attorney review the contract, and discuss with you your legal rights and responsibilities. People often ignore certain “standard” parts of a contract or often feel that they have no ability to negotiate the terms of a contract.

Many terms of a contract are negotiable, and oftentimes, negotiating certain terms of a contract end up benefiting both parties in the end. I have reviewed several contracts where the person presenting the contract to my client used a form from someone else (i.e. no one had consulted an attorney), and didn’t realize there was an agreement that if a lawsuit was brought, venue was in an inconvenient location where neither party would want to litigate. Speaking with an attorney prior to signing a contract can also lead to possible different ways to achieve the same intent of the contract, without as much risk involved.
Contract Dispute
It also gives you the chance to talk with someone experienced who can advise you on what is in your best interest. I have often heard the phrase: “You can’t make a good deal with a bad person.” I am often surprised when someone (who has already signed a contract with a “bad” person) knew that person had failed to fulfill their obligations to previous parties. Most people would seek the advice of a doctor when making a significant medial decision. It is axiomatic that having the benefit of legal advice when entering into a contract where one is obligated to perform is almost necessary to protect one’s person and business interests.

In a recent case out of the 5th District Court of Appeal, Blue Earth Solutions v. Florida Consolidated Properties, LLC, 113 So.3d 991 (5th DCA 2013) the appellate court noted the case was “a classic example of what often occurs when parties attempt to consummate a complex business transaction without the benefit of legal representation. What makes this case especially remarkable is that this business transaction involved almost half a million dollars. Within twenty days after the so-called closing of the sale of business assets, the entire transaction unraveled, culminating in legal proceedings.” Having the advice and counsel of an attorney can help you avoid those situations and make the best possible decisions for you and your business.

Disputed Attorney's Fees

Disputed attorney’s fees

In cases where attorney’s fees are a disputed issue, each party’s attorney provides an Attorney’s Fee Affidavit, which represents his or her work on a particular case. I always find it interesting to compare other attorney’s affidavits with my own bills, to determine how other firms are billing their clients. In reviewing some of those bills, I located a case, Browne v. Costales, 579 So.2d 161 (Fla. 3d DCA 1991) where the Third District Court of Appeal wasn’t exactly happy with the billing practices of the lawyer:

“Appellee’s second attorney, the recipient of a $20,000 attorney fee award, did not keep time records because he relied on ‘unit billing.’ Appellee’s counsel admitted at oral argument that his apparently silver-tongued efforts as trial counsel secured no equitable distribution, no lump sum alimony, and no permanent or rehabilitative alimony for the wife in this one and one-half year marriage; the sole result which he obtained was $10,000 in temporary support monies.”
Silver Tongued
The Court explained that unit billing is a practice where the attorney bills a predetermined number of minutes for a given task. The Court found that the attorney’s practice of unit billing was unacceptable, and “serves to fuel the opprobrium felt for the legal profession.”

The Court went on to note that the attorney had “the effrontery to explain that his unit billing included the time necessary for him to fold the paper, stuff the envelopes, and seal them (no doubt with his silver tongue).”

The Court also cited to The Florida Bar v. Richardson, 574 So.2d 60 (Fla.1990) where the Florida Supreme Court suspended an attorney, finding “absolutely no justification” for unit billing, stating: Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney’s fee, is therefore a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that; it brings the court into disrepute and destroys its power to perform adequately the function of its creation. The Florida Bar v. Richardson, 574 So.2d at 62 (quoting Baruch v. Giblin, 122 Fla. 59, 164 So. 831 (1935)).